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August 29, 2013

New York Court of Appeals to hear home rule case

Bans in Middlefield and Dryden to be argued next spring

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ALBANY (AP) — New York's highest court agreed today to hear appeals from a drilling company and a Middlefield farmer challenging municipal bans on hydraulic fracturing for natural gas.

The Court of Appeals, without comment, accepted two cases where lower courts upheld bans in the upstate towns of Middlefield in Otsego County and Dryden, near Ithaca.

If the case is handled routinely, it will be argued and decided next spring, court spokesman Gary Spencer said. In requesting top court review, nobody has yet asked to expedite the case.

New York hasn't decided whether to lift a 5-year-old moratorium on fracking. State health officials are still studying its effects.

A midlevel court unanimously concluded in May that state mining and drilling law doesn't trump the authority of local governments to control land use. More than 50 New York municipalities have banned gas drilling in the past few years, and more than 100 have enacted moratoriums on drilling activities.

"The plain language of this provision prohibits municipalities from enacting laws or ordinances 'relating to the regulation of the oil, gas and solution mining industries,'" Justice Karen Peters wrote. "The zoning ordinance at issue, however, does not seek to regulate the details or procedure of the oil, gas and solution mining industries. Rather, it simply establishes permissible and prohibited uses of land within the town for the purpose of regulating land generally."

Norse's challenge to Dryden's drilling ban has been closely watched by an industry hoping to drill in New York's piece of the Marcellus Shale formation using the technology known as fracking, which frees gas from deep rock deposits by injecting wells with chemical-laced water at high pressure. The rest of the formation is located under parts of Pennsylvania, Ohio and West Virginia. Environmentalists and a group of Dryden residents fear the drilling could threaten water supplies and public health.

A Jennifer Huntington, operator of Cooperstown Holstein Corp., is challenging the Middlefield restriction, saying the town is preventing her from making money from the gas wells planned on her land.

 

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