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New York Court Affirms Towns’ Powers to Ban Fracking

New York communities gain new authority to determine who can frack in their town.

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Opponents and supporters of fracking walk into the last of four public hearings on proposed gas drilling regulations in New York state on Nov. 30, 2011. (Spencer Platt/Getty Images)

In a decision that could set a national precedent for how local governments can regulate gas drilling, a New York state court yesterday ruled for the first time that towns have the right to ban drilling despite a state regulation asserting they cannot.

At issue was a zoning law in Dryden, a township adjacent to Ithaca and the Cornell University campus, where drilling companies have leased some 22,000 acres for drilling. In August, Dryden's town board passed a zoning law that prohibits gas drilling within town limits. The next month, Denver-based Anschutz Exploration Corp. sued the town, saying the ban was illegal because state law trumped the municipal rules.

 

As Anschutz noted, New York law promotes the development of oil and gas resources in the state. State Supreme Court Justice Phillip Rumsey addressed this point in his decision, writing: "Nowhere in legislative history provided to the court is there any suggestion that the Legislature intended — as argued by Anschutz — to encourage the maximum ultimate recovery of oil and gas regardless of other considerations, or to preempt local zoning authority."

The Dryden case is merely the latest in a string of similar conflicts arising from Colorado to Pennsylvania that pit local communities against state oil and gas laws. It is common for local governments to zone industrial or commercial land, or to institute ordinances for noise or traffic. When it comes to the development of natural resources like oil and gas, the industry contends that local government shouldn't make those decisions.

In New York, the controversy over state regulation of fracking has been brewing for years. In 2008, New York effectively put drilling on hold while it launched an environmental analysis of fracking, a process that uses a mix of highly pressurized water, sand and other chemicals to crack the earth deep underground. This is the first ruling on an industry effort to use the mineral extraction law to get around local bans.

In addition to the environmental and health concerns over fracking, which we've covered in depth, a fundamental issue has been the rights of localities against state or federal laws. According to Eric Goldstein, a senior attorney for the Natural Resources Defense Council in New York, the right of local governments to determine their own land use has been guaranteed by the Constitution for over a century.

"The argument is simple," said Goldstein. "New York state laws shouldn't override the authority of local governments to protect their constituents."

In New York, two very similarly worded laws govern the regulation of mining and oil and gas drilling. The oil and gas provision gives the state the power to "regulate the development, production and utilization of natural resources of oil and gas." The town of Dryden argued that it was not trying to regulate fracking but merely trying to protect its citizens and property. It pointed out that courts have allowed towns to ban mining, and said Dryden should be allowed to do the same for fracking. The justice seemed to agree, concluding that the state's oil and gas laws don't prohibit localities from barring drilling.

Anschutz's lawyer, Thomas West, said he was not sure whether the company would appeal the decision. Even if it does so, said Joseph Heath, an environmental attorney in New York, Tuesday's win could help set a precedent for other communities. Despite the threat of similar lawsuits from a major corporation, local fracking bans and moratoriums have continued to grow in the last few years.

"People are now concentrating on local governments because that's the best form of protection against fracking," said Heath.

Such protection is unlikely to come from the states, as New York's Department of Environmental Conservation has already deferred to the courts. When ProPublica interviewed the commissioner last year, we asked him specifically about the potential for conflict between local municipalities and states. He said it was likely "that the courts will need to decide these issues in a lawsuit between the town and the drilling company, not the state." Now, it looks as if at least one court has decided.

"[The Dryden case] is an important indicator of how those battles are likely to play out," said the NRDC's Goldstein, "although it's not the final word."

I’m really glad to see that someone is finally going to slow down fracking.

The Court’s decision is great, although this case will most likely go to the Court of Appeals, at least the drilling company has to halt all act until the higher court has a decision.

A temporary victory, which will ultimately be decided by higher courts that may be in the pockets of the gas industry.

I’m curious.  Has anyone who criticizes fracking actually proven that it has contaminated the ground water?  ‘m not talking about coulda, woulda, shoulda, but a scientifically documented, peer-reviewed study that ties the methane in the drinking water to the fracking process? Methane is a nayurally occurring substance and can occasionally be found in ground water.  Other drilling & completion practices not associated with the fracking process (poor cementing jobs, etc.) can also contaminate shallow ground water.  I would like to be referred to such a study.  Thanks

Don, I wish I could remember who here recommended it to us first, but before looking for such a study, take a look at “Inconclusive by Design,” which you can download and read fairly quickly if you’re willing to read scientific papers.  It’s about the EPA and related agencies and their treatment of Superfund sites, but the same thinking applies to all studies.

Basically, the sort of evidence needed to “confirm” contamination on a scientific basis (rather than a practical basis of observing cause and effect) requires impossibly large sample sizes and often allows the worst cases to be excluded.  It’s also easy to dispute a lack of an experimental control and a few other angles.

My opinion is that, in the event of an inconclusive study, you err on the side of caution, especially when contamination happened shortly after fracking began and the contaminants are related to the process.

I mean, sure, you could imagine that the methane came from some mysterious primal source, but the more likely scenario is that it came from the place where they’ve recently started pulling hydrocarbons (like methane) out of the ground until a more probable source can be found.

But along similar lines, where are the success stories?  The industry should be able to allay fears by pointing to a region that has significant fracking that hasn’t seen an upsurge in pollution.  The could study not from the perspective of proving danger but proving safety.

Residents in Pa. have suffered the ruining of their wells.
If that ain’t enough to give pause then these pro drilling people in this state are clueless. It doesn’t take a Phd. to figure out there there’s something wrong with the drilling process. Gimme a break. I’m not the sharpest knife in the draw, but I can see that.
Let the Colorado companies go somewhere to ruin an enviornemt.

I agree with John about the nature and interpretation of such studies, and you will, too, after reading the   “Inconclusive ...” paper (see http://www.ejnet.org/toxics/inconclusive.pdf)

Both industry and public health officials must agree on how, and for how long, to conduct the necessary studies, before concluding whether or not fracking is harmful to humans and the environment. The hard part is keeping politics out of such decisions: read in “Inconclusive…” how the White House (Reagan and then Bush 1), for example,  affected our understanding of how exposure to Agent Orange affected the health of our armed forces in Vietnam and afterward.

This is great news!

Where I live, Town of Jerusalem, Yates County, NY has just passed a law similar to Dryden’s.

http://www.chronicle-express.com/news/x1331031785/Jerusalem-passes-fracking-ban-asserts-home-rule-zoning-authority

I wonder if this is constitutional.  I don’t think that it would hold up under the Dormant Commerce Clause.  (Because Congress is given the power to regulate interstate commerce, states and localities are not allowed to do so, from time to time.)

I’ve often wondered about the science behind the anti-fracking claims, as well.  A lot of it seems seems to be anecdotal.  Further, the people making arguments against it seem to be saying that science fails us on this claim and that we should take their word for it.  People working against fracking would never allow such arguments to be made against evolution or climate change.

Eventually, the economic pull is going to be too much to leave the energy in the ground.  If the type of fracking that we have now is proved to be destructive, another, less destructive type will come along.

Adam….“If the type of fracking that we have now is proved to be destructive, another, less destructive type will come along.” I know the industry is not using Best Available practices…they are too expensive….there already is a less destructive type of energy available to us ...solar, & wind. Read my Arlingotn TX experiences with urban drilling at word press called BarnettShaleHell. TX statute 253.005 is a perfect example of how the law knows heavily settled areas shouldn’t endure heavy, industrialiszed fossil fuel extraction…God help us with the rural areas and all that water contamination risk.

Salvatore DiChristina

Feb. 24, 2012, 8:34 a.m.

Now I would like to see the Republican response to the Judge’s ruling. It would make them look like a fool after preaching individual liberty. And remember how they used to praise Home Rule when Democrats were in power? Watch them do their darnedest to skirt that principle only when it benefits them.

Adam, what you’re suggesting is that companies should be allowed to pump, say, benzene (a known carcinogen) through aquifers and into the ground beneath to damage bedrock and push hydrocarbons back through the aquifer UNTIL such time as it can be conclusively proven that it’s a significant danger to the people living there.  That’s despite the fact that any studies that ignore people who moved away, people too ill to participate, and uses statistical models that would require a population the size of New York City.

Waiting for a study to confirm the problem before stopping isn’t avoiding alarmism, it’s ignoring common sense.

Interestingly, given your presumption about the “kind” of person against fracking, I fully believe that Global Warming is a sham and “solving” the problem is going to kill many more people than ignoring it by encouraging lower temperatures and fewer fuel sources.  In other words, I ain’t no tree-hugger and walk into these fields fully skeptical.  (I also don’t have a dog in the race.  I live on Long Island, basically a pile of sand, where drilling would be prohibitively expensive if not impossible.)

That said, your interpretation of the Commerce Clause is close, but slightly flawed in that it assumes Federal law controls absolutely.  That can be true, in that they could pass a law saying that localities have no say, but they’re benignly neglectful dictators in this case so far.  Until the law says otherwise, the towns, counties, and states need to battle it out.

I question the lead sentence in this story. The finding of the lower court in New York may be one lower court ruling in determining whether statewide regulations have primacy over local municipalities, but I doubt whether it establishes a “national precedent.”

The states (rather than the federal government) have retained the powers to regulate their own natural resources, where not present on federal lands as is the case in many Western states. While the federal government regulates interstate commerce (e.g., pipelines) and interstate environmental matters (e.g, air quality), the states manage their own resources.

As to whether the statehouse or the local town hall has primacy on the management of resources within the region, county or municipality, I assume that’s a question of that specific state’s constitution. What may or may not be a precendent-setting ruling in New York is likely to have little impact on Pennsylvania, which would look to its own delegation of authority under its constitution.

I think a rewrite of the lede is in order.

Salvatore DiChristina

Feb. 25, 2012, 7:06 a.m.

John and Tom. I would suggest any testing be done in a controlled lab. My reasoning: If it is done in actual mining situations and the chemicals used prove to be dangerous to our well being it will go no further than the controlled confines of the lab.
If there are those that want the chemicals field tested then I suggest they move their homes into the middle of the testing grounds or have the company do their fracking in their backyard.

Fred Farklestone

Feb. 26, 2012, 10:17 a.m.

Why don’t the drilling companies just release what type of chemicals are in the fracking water? That would be the easiest way to clear up any doubts about what exactly is in the water.
I know back when the Bushies were in charge, Congress passed a law that said they didn’t have to revel what they were pumping underground! Isn’t openess the best policy in a case like this?

Salvatore, you’re not wrong, but what officials want is a study of whether fracking itself is dangerous, not merely the chemicals.  The position of the drillers is that chemicals go in, gas comes out, so it “doesn’t matter” what they pump in (which is the pathetic answer to Fred’s question).

All the illness in the community after is considered a coincidence until a study can trace the illness back to the fracking.  That’s why I mention “Inconclusive by Design.”  It explains that the statistical models used require many times the local populations to get a usable answer, so OF COURSE the study is inconclusive, time and time again.

It’s an old game.  The fracking fluid is perfectly safe until proven otherwise, so there’s no reason to tell you what’s in it.  Fracking is safe until proven otherwise, and it’s mathematically impossible to provide that proof in a way that’s acceptable.

As a local boy, I went to Dimock PA in summer for Church Camp.  There were no problems with water.  After the drillers came, you cannot drink it, though you can light it on fire at several houses.  First came small settlements and sicknesses, then the drillers left.  Drinking water was delivered for a time, now even that has stopped!
I wonder who would fund a “scientific study with peer reviewed publication” so that this won’t be derided as “anecdotal”; perhaps Halliburton?  But the damage has been done hundreds of times and continues while this talking wastes time; look at the lands in Wyoming, Texas and Ohio already ruined.

Take a pill and change your underwear. There is no known case where fracking has caused a problem with anything. That place in WY is miles away from any fracking site. The last time everyone got worked up like this, we attacked Iraq. Get a grip.

Wow!!!  So much ignorance here it’s un-believable…

The proof that fracking is destructive beyond belief is abundant in all places that they practice it….not to mention the water that we are using in this junk process.

The people that defend it sound EXACTLY like industry reps that spew lies.

Jobs,cleaner burning,safe….all lies…

It’s great to see this take place in New York…and it wont be the last

Let’s shut down fracing in the Northeast.  There is plenty of gas in Louisiana, Arkansas and Texas to keep everyone warm in New York and Pennsylvania.  Don’t worry about it.  Just shut it down.  Please don’t take any risk.  We will get it done and send it your way.

This article is part of an ongoing investigation:
Fracking

Fracking: Gas Drilling's Environmental Threat

The promise of abundant natural gas is colliding with fears about water contamination.

The Story So Far

The country’s push to find clean domestic energy has zeroed in on natural gas, but cases of water contamination have raised serious questions about the primary drilling method being used. Vast deposits of natural gas, large enough to supply the country for decades, have brought a drilling boom stretching across 31 states. The drilling technique being used, called hydraulic fracturing, shoots water, sand and toxic chemicals into the ground to break up rock and release the gas.

More »

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