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Guest Column

June 14, 2014

Drilling's future is at stake in state's high court

Last week Jennifer Huntington’s request to heat her barns with gas from her own property was heard at the Court of Appeals in Albany.

At issue is “home rule” — whether the state or a municipality determines where drillers may drill for gas and oil in New York.

The court’s job is to interpret the intent of the existing written law. The Environment Conservation Law defines the DEC’s relationship to the oil and gas industry; to regulate development, production, and utilization in order to prevent waste, enhance recovery, and protect the rights of citizens.

In 1981, because of chaotic regulatory mess in western New York, the Legislature added ECL 23-0303 [2] — the supersession clause. It reads; “the provisions of this article shall supersede all local laws (emphasis added) relating to the regulation of oil, gas, and solution mining industries; but shall not supersede local governments jurisdiction over local roads or rights of local governments under Real Property Tax Law.”

The Court of Appeals is now asked to decide what “all local laws” means. The clause is not difficult. It’s written on about an eighth-grade reading level. Judges should be able to understand it. They haven’t so far.

In 1981, the Legislature worked a deal. Money from oil and gas goes directly to local towns, schools and agencies, not to disappear into Albany’s General Fund. This was the trade-off for loss of home rule. For 30 years this centralized regulatory arrangement worked fine.

Enter the Gas Wars. Renewable energy, the antis’ answer to the ills of the world, can’t compete on the open market with abundant, cheap, domestic natural gas. In order to close New York to gas development, antis instituted town bans. The goal was/is a statewide ban.

Anti-fracking lawyers needed the pre-1981 patchwork regulation re-imposed. To this end they used a section of the ECL dealing with gravel mining. Local zoning is allowed for gravel mining. They then argued that gravel mining is essentially the same activity as oil and gas drilling. Since gravel mining allows zoning, oil and gas drilling should also.

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