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Fossil Fuels New York fracking bans

Published on July 1st, 2014 | by Tina Casey

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Legal Bombshell: New York Fracking Bans Could Cause Ripple Effect

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July 1st, 2014 by
 
Here’s some huge news just out from the New York fracking ban front. Yesterday the New York State Court of Appeals issued a decision upholding the legal platform that has supported scores of local bans on oil and gas fracking in the state. If that doesn’t sound all that impressive, consider that New York is unique in calling its highest court “Appeals” instead of “Supreme,” meaning that fracking advocates have reached the end of their legal road.

New York fracking bans

New York State Court of Appeals (altered/cropped) via wikimedia commons.

New York And Fracking

Until recently upstate New York was known more for tourism and agriculture than oil and gas drilling, but the state has become ground zero in local efforts to prohibit fracking (aka hydrofracturing, the shale drilling method that involves pumping a chemical brine underground).

Fracking is not a new practice, but it has been flying under the radar for decades, partly because for most of those years it was confined largely to thinly populated areas in the western states.

Fracking spread into Pennsylvania and other more densely populated eastern states after the Bush/Cheney administration gained the practice exemption from federal environmental regulations. Those loopholes have [almost] prevented critics and federal regulators from gathering direct evidence of negative impacts.

One attraction of fracking is that it can bring new dollars into depressed, isolated communities, but the problem in states like New York and Pennsylvania is that many communities already have a firm economic platform, namely tourism, recreation, and agriculture. As an industrial activity, fracking clearly has the potential to be a disruptive force in these communities.

Given these considerations, New York placed a statewide moratorium on fracking back in 2008, but with the clock ticking, local communities have set about taking action on their own.

The New York Fracking Bans

For communities seeking to ban fracking, the basic problem is that fossil fuel industries are generally regulated under state and federal law, leaving local governments without a legal straw to grasp.

The New York fracking bans, which cover scores of upstate communities, were passed thanks largely to the efforts of upstate lawyer Helen Slottje.

As reported in the Albany Times-Union (do read the whole article for lots of local insight), Slottje devised a legal strategy for fracking bans, based on the long established authority of local governments to regulate commercial and industrial activity through zoning laws. In all, more than 200 New York communities have placed fracking under moratorium or have banned it outright.

That home rule strategy was strong enough to override New York’s mining laws, which according to the Times-Union place authority over gas drilling in the hands of the state.

Here’s the money quote from the majority decision of the Pennsylvania Supreme Court cited by the Times-Union:

…The two towns ‘studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately cultivated, small-town character of their communities.’

For the record, the Pennsylvania Supreme Court recently upheld zoning based fracking bans in that state. The decision went against a new statewide zoning plan that would have overridden more stringent local regulations.

The Ripple Effect of New York Fracking Bans

The New York decision poses a triple whammy for the industry that ripples out beyond the 200 communities that have just had their zoning rights upheld.

First, a large number of New York communities are apparently poised to take action on fracking, pending the court’s decision, so stay tuned for that.

 

Second, while plenty of upstate communities still permit fracking, the ban/no ban piecemeal approach creates new complexities for the industry. Put that in the context of the considerable clout of existing stakeholders in the state’s agriculture and tourism industries, and you have a very unwelcoming atmosphere.

Third, the ruling provides new ammunition for local communities in other states, including California and Colorado, where fracking-induced earthquakes have become a particular cause for concern.

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About the Author

Tina Casey specializes in military and corporate sustainability, advanced technology, emerging materials, biofuels, and water and wastewater issues. Tina’s articles are reposted frequently on Reuters, Scientific American, and many other sites. Views expressed are her own. Follow her on Twitter @TinaMCasey and Google+.



  • LookingForward

    Next step for the lawfirm:
    Give communities who are neighbours of communities who frack a vote on if the fracking can continue.
    Next step for New York (and other states that might follow sweet):
    When a certain percentage of counties/communities, containing a certain percentage of total state population (say 50%), ban fracking. Fracking should be banned state wide.

  • Offgridmanpolktn

    Just here to add a great big hooray that this program of local rule has triumphed.
    Having been born and raised in the finger lakes area of central upstate New York can remember seeing small and mid sized family farms supplying their natural gas needs off from private wells. The idea of this being commercialized and destroying the local environment as has happened in many places in Pennsylvania though caused a lot of concern.
    So once again hooray for something that sticks up for the rights of the common people and protects the environment that we all need. Even if I only go back there in my memories it is good to know that it will stay as beautiful as remembered.

  • http://www.michaeljberndtson.com/ Michael Berndtson

    I hope this is true. It may just spur lawsuits and squabbling. Then O&G public relations will swoop in and declare entire communities unpatriotic or anti something. By tying fracking to freedom and anti fracking to anti interventionist liberals and their selfish concerns for community’s land, water and air quality over other things. Or something. In the meantime, horizontal runs of fracking wells will extent two miles from the adjacent community, into the shale under the community with a ban. Sort of how the first Iraq war got started when Kuwait directionally drilled into Iraq.

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