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May 7, 2013

Lawyer: Ruling could start N.Y. fracking

By Joe Mahoney Staff Writer
The Daily Star

---- — 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.”

Another potential consequence of last week’s ruling is that another wave of New York towns and villages will enact their own bans or moratoriums against gas drilling, said Deborah Goldberg, the New York City-based Earthjustice attorney who aided the defense of the Middlefield law that was upheld by the midlevel appeals courts.

As for Cuomo, Goldberg said: “The governor is willing to abide by the law. DEC (the state Department of Environmental Conservation) has not stepped into any of this litigation. The clear message is that DEC and the governor recognize that it is perfectly possible to operate with or without these local bans.”

Goldberg added: “There is no evidence that by giving localities that power you are somehow going to make it impossible for the industry to proceed in New York.”

The doctrine of home rule, of course, goes well beyond making gas drilling off-limits or permitting it. One of those spearheading opposition to Cuomo’s plan to allow casino gambling parlors in upstate New York, Dr. Stephen Shafer of Saugerties, noted zoning can be used both in a “a defense mode” and “a welcome mode.”

The ruling involving the towns of Middlefield and Dryden, Shafer said, should serve as a reminder to towns to make sure they all have comprehensive plans that embody the visions they have for their communities and protect the character they want to maintain while allowing for a level of development they think is consistent with that vision.

“Every town should have a comprehensive plan,” said Shafer, chairman of the Coalition Against Gambling in New York.

When it zeroed in on the drill bans enacted by Dryden and Middlefield, the gas industry, said Adrian Kuzminski, founder of the anti-fracking group Sustainable Otsego, raised the stakes by using the courts to try to stifle the home-rule initiatives. That, in turn, caused the environmental movement to rally around those towns that voted to keep out drillers, he said.

“Judges don’t like to overturn decisions by legislative bodies, and now you have this whole political movement — and to slap it down becomes a lot more difficult for the judicial system,” he said.

Former state DEC Commissioner Mike Zagata, a Davenport resident, said the region needs to begin to reflect on the symptoms of a local economy in decline — with Otsego County poised to privatize the Otsego Manor nursing home, local school districts shedding teachers and cutting programs and young people migrating out of the area.

Allowing drilling, he said, would yield hundreds of thousands of dollars in ad valorem taxes for local governments.

“We have some issues here we have to confront, and unless we do that we’re going to continue in a downward spiral,” Zagata said. “Is anybody connecting the dots?”

So far, since Middlefield and Dryden became among the first communities to keep out drillers, an estimated 150 towns have either passed bans or moratoriums against gas excavation. Ellen Pope, director of the environmental group Otsego 2000, said she believes a majority of residents in many towns favor bans but have been stymied by “intransigent” town board members.

In the wake of last week’s ruling, Pope said, “I have a feeling that we will see another surge of towns move forward” and pass bans. “There are towns now that are breathing a sigh of relief that they can move forward without worrying about lawsuits.”

She said Otsego 2000 stands ready to assist town boards in updating their zoning laws.