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June 7, 2014

In Our Opinion: Home rule question finally to reach end

Perhaps there is at long last one thing upon which the pro- and anti-fracking sides can agree.

It is a good thing that the question of home rule in New York state will finally be settled within the next month or so.

Arguments were heard in New York’s highest court — the Court of Appeals — Tuesday regarding whether the towns of Middlefield and Dryden can enact zoning laws that would prevent drilling for natural gas.

Lawsuits by the Cooperstown Holstein Corp. against Middlefield, and Mark S. Wallach against Dryden, have already been dismissed in a lower-court ruling and at the mid-level appellate division.

Assuming the case does not somehow find its way to the U.S. Supreme Court, this is it. No more courtrooms. The more than 70 New York towns that have banned hydrofracking, and another 120 that have imposed moratoriums, will have their answer.

While it would be far wiser to wager on today’s Belmont Stakes than to try to predict what any court will do, the tea leaves might portend more good news for Middlefield and Dryden.

This is based on some of the questioning from justices during Tuesday’s hearing and the fact that the state Legislature has never passed a law that would prevent home rule.

When an attorney for the plaintiffs pointed out that the state’s Oil, Gas and Solution Mining Law makes gas drilling regulation the province of the state Department of Environmental Conservation, Chief Judge Jonathan Lippman said: “There’s a flip side to that argument, which is, don’t bulldoze over the voice of the people in individual municipalities who want to be heard about how they live their lives.”

Justice Victoria Graffeo said some of the arguments would have the justices “stepping into the void the Legislature hasn’t addressed. Apparently there is an impasse with them trying to pass statewide clarification here as to whether it’s preempted or not preempted. We have to deal with the language of the statute.”

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