November 1, 2011

As Ithaca Votes on Fracking, Dryden Defends Its Ban

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With the City of Ithaca set to vote on a proposed hydraulic fracturing ban Wednesday, the Town of Dryden is preparing to defend its own ban on natural gas drilling before the Tompkins County Supreme Court on Friday. The Anschutz Exploration Corporation, a Denver-based gas drilling company, filed a lawsuit on Sept. 16 against the Town of Dryden, seeking to challenge the town’s hydraulic fracturing ban, asking the court to rule the ban “invalid, unlawful and unenforceable,” according to court documents.As New York State moves toward permitting high-volume “hydrofracking” — a controversial practice in which chemicals are injected into the ground at high pressures to extract natural gas — Dryden and 51 other municipalities across the state have either changed their zoning regulations or passed laws to ban the process.The future for local hydrofracking bans, several legal analysts said, may be determined by precedent set by court rulings on the legality of Dryden’s ban and a similar ban in the Town of Cooperstown.“Precedent is probably going to come out of these cases,” said Prof. Cynthia Bowman, law, referring to the Dryden and Cooperstown lawsuits. “There hasn’t been a court decision on this issue since the concept of fracking was developed.  Current natural gas law is from the 1980s and did not consider this process.”While Dryden’s ordinance says the town will not recognize the validity of any local, state or federal fracking permit, the Anschutz lawsuit claims such a ban violates state law.“[New York State law], as amended in 1981, supersedes all local ordinances relating to natural-gas drilling, subject only to two limited exceptions for the exercise of jurisdiction by local governments: local roads and property taxes,” the Anschutz lawsuit states. The Anschutz Corporation has invested about $5 million in the area and currently owns about 20,000 acres of land under Dryden’s jurisdiction, according to Reuters. The company did not return a request for comment from The Sun.However, Town Attorney Mahlon Perkins, who will defend Dryden’s ban, said Anschutz wrongly considers the ordinance a regulation. While State Law supersedes local drilling regulations, the ordinance should be considered a ban, not a regulation. The law only applies to regulations, Perkins said.Perkins added that the fracking ban is one component in the area’s broader zoning laws, which he said already prohibit heavy industry’s use of town lands.“It’s not really about fracking. It’s about whether or not state law trumps local land-use authority,” Perkins said.The zoning regulation may be seen, however, as only targeting fracking, Prof. Bowman said. The town will have more difficulty winning the case if the ban is understood by the court in this way, she said. “It looks like [Dryden is] targeting a specific industry, instead of being more broadly applicable and saying other industries that may have similar impacts are also banned,” she said.  “It looks like they are literally targeting one specific use of the land. This makes the case harder for Dryden.”The ongoing fracking debate, which will resurface before the City of Ithaca’s Common Council meeting Wednesday, has provoked both passionate opposition and support. While many argue that the drilling practice poses deleterious environmental consequences, others say fracking has the potential to reinvigorate New York’s sagging economy.A report last week from the conservative Manhattan Institute for Policy Research said that allowing drilling in New York could inject over $11 billion dollars into the state economy in the years ahead.The emergence of local bans on fracking has been driven by the New York Department of Energy Conservation’s preliminary draft regulations that would allow fracking in much of the state, ending a moratorium of the practice that has been in place since 2008.Anschutz seeks a “preliminary and permanent injunction enjoining [Dryden] from enforcing or implementing [zoning regulation] in a manner that bans, restricts or regulate soil and gas extraction, exploration, development or related activities,” according to its lawsuit.Still, Perkins said he is cautiously optimistic the town will win.“We have the same resolve that they do,” he said.  “We’re both going to have our day in court before the judge.” Bowman said that, despite the importance of the case, the fight would not resolve the dispute over the fracking ban.“The case is definitely going to be appealed,” Bowman said. “No matter the decision.”

Original Author: Justin Rouillier