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June 30, 2014

Middlefield and Dryden win home rule case in Court of Appeals

Towns allowed to ban fracking

Local governments in New York have the authority to zone out gas drilling, the state's highest court decided today in a 5-2 ruling that grew out of challenges brought against fracking bans enacted by the towns of Middlefield and Dryden.
The Court of Appeals signaled in the majority decision that it was not focused on the merits of the bans but on the legal authority of the towns to keep out drilling - a move the industry claimed exceeded their authority.
"The towns both studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately-cultivated, small-town character of their communities," according to the majority ruling.
The ruling erects a major barrier to the drilling industry in New York, even if Gov. Cuomo gives the green light for shale gas permits to be issued by the state Department of Environmental Conservation, as companies could not set up operations in the growing number of communities that have banned gas production.
"This is a victory for both home rule and our towns," Middlefield Town Supervisor David Bliss told The Daily Star.
Middlefield's ban, enacted in 2011, was challenged by Cooperstown Holstein Corp. The company is owned by Middlefield dairy farmer Jennifer Huntington. She had leased her farm land to a gas company she said was only interested in placing a conventional gas well on her land, not an operation involving the more controversial process known as horizontal hydraulic fracturing for natural gas trapped deep within the earth under layers of shale.
Dryden's ban was challenged by Norse Energy, a company based in Norway.
The Joint Landowners Coalition of New York, an umbrella group for property owners hoping the companies now drilling in Pennsylvania and Ohio will get to conduct similar operations in New York, expressed disappointment with the ruling.,
“The rights of the State and its experts at the DEC to make decisions concerning the production of New York’s domestic resources has been obliterated by the Court in favor of a not in my back yard mentality,” said the group's president, Dan Fitzsimmons.
Giving the ruling, Fittzsimmons contended, the state should issue the final supplemental environmental impact statement that would allow gas exploration in towns that want to develop natural gas.
Scott Kurkoski, the lawyer for Huntington, thanked his client for what he called her "brave and ttireless efforts in protecting the rights of New York’s landowners.” 
Kurkoski said: “Now, more than ever, we need real leadership from our State. Our Governor and Attorney General completely failed to weigh in on this important issue affecting New York. Once again our Governor has remained silent while New York squanders the best opportunity for energy independence we have seen in our lifetimes. We encourage him to use this moment to issue a final SGEIS and allow natural gas development to proceed in towns where it is favored. ”

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