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 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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