Avon fracking ban upheld by Kate O’Connell, March 20, 2013, Innovation Trail
The town of Avon has become the third community in upstate New York to win a court case over the right to ban fracking operations. Western New York-based gas drilling company, Lenape Resources, took Avon and the state Department of Environmental Conservation to court over the town’s moratorium on drilling, saying the ban would put it out of business. Jim Campbell, the Avon town attorney says they’re pleased with the court ruling, but the decision goes beyond the town itself. “It’s bigger than just the town of Avon, what it means is that we have some further judicial confirmation that municipalities have the right to determine what land uses are appropriate in their community, and what’s best for their constituents.”
Acting attorney for Lenape Resources, Michael Joy says the ban on drilling is bad for business, and creates a precedent where municipalities can regulate the oil and natural gas industries through zoning. “The reality now is, under current New York law, local municipal governments appear to be able to regulate the oil and natural gas industry through zoning. They have not before done that, or been able to do that so quite frankly I don’t think anybody really knows what the impact is going to be.” “The moratorium adversely impacts their business, and the company was very clear about that and I don’t see any upside at this point. But, they will now reach out and work with the community to see exactly what the community wants,” Joy says. Avon town officials say there intention isn’t to hurt business. They say the moratorium was carefully worded to ensure none of Lenape’s existing projects would be affected. “The town of Avon, from day one of the discussion was very interested in making sure to protect the ability of Lenape to continue to do what they had been doing in the community of Avon. They didn’t want to put Lenape out of business, they didn’t want to displace them from the town,” says Avon attorney, Jim Campbell. The moratorium is in place for another year and town supervisor, David LeFeber, says that will give the town time to make a decision on whether to allow fracking in the future. “It’s basically a pause button. It’s a one year period for us to make sure that if there was any activity to occur here in town, that the health, safety and welfare of our residents as well as the infrastructure in the community is protected.” Two previous cases won by towns in upstate New York are set to go before the state appeals court later this week. Appeals of the Dryden and Middlefield decisions will be argued in Albany, with Norse Energy aiming to have the home rule affirming drilling bans in both towns, overturned. [Emphasis added]
3rd NY town wins in court over fracking ban by Mary Esch, March 19, 2013, The Associated Press
On March 15, Acting Supreme Court Justice Robert Wiggins in Livingston County ruled against Lenape on all counts. He cited Court of Appeals precedents as well as decisions in favor of local bans in the upstate towns of Dryden and Middlefield.
Appeals of the Dryden and Middlefield decisions will be argued before the Appellate Division of the state Supreme Court in Albany on Thursday. The ban on drilling in the Tompkins County town of Dryden was originally challenged by Denver-based Anschutz Exploration Corp., but after the company declined to pursue an appeal of a trial-level state supreme court ruling in the town’s favor, the appeal was filed by Norse Energy, another company with gas wells in western New York. Albany attorney Tom West is arguing the appeals on behalf of industry and has said he’s confident the Appellate Division, or if necessary the highest court, the Court of Appeals, will agree that local bans violate a 1981 state law that says the state’s authority to regulate the oil and gas industry supersedes the authority of localities. New York has had a statewide moratorium on gas drilling that uses high-volume hydraulic fracturing, or fracking, since the Department of Environmental Conservation began an environmental impact study and regulatory overhaul in 2008. In the past couple of years, dozens of localities, anticipating that the state will eventually allow drilling, have enacted local bans or moratoriums on drilling at the request of residents who have petitioned town boards saying such heavy industrial activity is inconsistent with the community character and that they fear potential health and environmental risks. “One by one, the courts in New York are siding with the people over oil and gas industry interests, ruling that local municipalities have the right to decide what industrial activities are appropriate for their communities,” said Deborah Goldberg, attorney for the environmental group Earthjustice who will argue on behalf of Dryden and Middlefield in Albany on Thursday.
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