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May 7, 2013

Lawyer: Ruling could start N.Y. fracking

COOPERSTOWN — The court ruling last week that upheld the authority of towns to ban shale gas drilling could serve as “an exit strategy” for Gov. Andrew Cuomo to allow hydraulic fracturing in communities that have signaled they are open to it, a high-profile industry lawyer said Monday.

“The silver lining in this cloud is that it now gives the governor an exit strategy, because he can say we’re to set up the standards (for drilling) but the municipalities can decide whether this goes forward or not,” said Thomas West of Albany.

West, who works for the gas industry, was one of the lawyers who was assisting Jennifer Huntington, the operator of Cooperstown Holstein Inc., who has waged what has so far been an unsuccessful legal challenge to the town of Middlefield’s ban against gas drilling.

Huntington has said she wanted to locate a conventional well at her farm in Middlefield, close to Brewery Ommegang, but the enactment of the local ban stifled her plans.

West said one one basis for an appeal of the Appellate Division ruling that recognized local towns have the authority to ban drilling is the court’s conclusion that stopping landowners from benefiting from the mineral rights was merely an “incidental impact.”

“That’s what we hope to have the Court of Appeals take a look at,” the lawyer said.

Even though gas prices have increased recently, West said he doubted the gas industry will make New York drilling a priority because of regulatory uncertainty, and what he called Cuomo’s indecision.

“I don’t think they are going to come back to the state until the governor takes his finger off the SGEIS (the Supplemental Generic Environmental Impact Statement for gas drilling) and this kind of issue (home rule) is resolved,” he said. “If this issue is not resolved, I expect you will see some drilling in those parts of the state where the towns passed resolutions in favor of drilling.”

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