Journalism in the Public Interest

Lawsuits Predicted as New York Towns Ponder Whether to Block Fracking

Drilling is still months away, but talk has already begun about legal challenges from energy companies and landowners in the areas where hydraulic fracturing would be prohibited.


A New York Hydraulic Fracturing prevention press conference (D Dipasupil/Getty Images)

New York environmental officials have released a blueprint for regulations that eventually would allow hydraulic fracturing to begin in most parts of the state—except for key watersheds and aquifers and on state land.

Drilling is still months away at the earliest, but talk has already begun about legal challenges from energy companies and landowners in the areas where high-volume hydraulic fracturing, or fracking, would be prohibited.

“I think some of the bans and setbacks are legally questionable,” said Tom West, an oil and gas attorney in Albany, N.Y., who represents a number of drilling companies in the state. “When they start putting areas off limits to drilling or production that raises a significant legal issue.”

West said the ban would deprive landowners and leaseholders of the right to develop their property.

Energy companies may be more likely to challenge the growing number of local bans. Over the last year, several New York towns have either issued local fracking bans or begun the process of doing so.

State law says only the Department of Environmental Conservation can regulate drilling. But towns are allowed to zone their own land, and many have been using zoning laws to try to keep fracking outside municipal limits.

Ithaca’s town supervisor Herb Engman said streams and a lake within town limits provide drinking water to more than 90,000 people in the area. He said the water deserves the same protections as those proposed for the watersheds for New York City and Syracuse, where drilling would be banned under the state’s blueprint.

“I don’t see the difference between the concerns for their watershed and the watershed for the people of Ithaca,” he said. “We need to keep our waterways pure.”

Engman said the town’s zoning laws prohibit any industrial practice that is not explicitly allowed, including gas drilling. He said 12 percent of the town is currently leased by drilling companies, but that he and the town’s attorney are confident that courts would uphold their zoning rules if the town is sued.

On Wednesday, DEC Commissioner Joseph Martens told a local newspaper that the issue is likely to end up in court.

West said zoning is not an appropriate way to limit drilling and that it’s only a matter of time before a lawsuit is brought against one of these towns. But Michelle Kennedy, a lawyer who represents several towns that have zoned against fracking, said state courts have upheld local efforts to prohibit mining. Judges would likely look to those rulings as the closest precedent in a fracking case, she said.

“The towns have prevailed when they’ve tried to apply their land-use laws,” she said.

Towns have been moving to ban drilling or fracking across the country. As we reported in January, similar uncertainties were raised in Pennsylvania as well. One energy company recently sued a West Virginia town that banned horizontal drilling within a mile of town limits.

It’s only a matter of time before the same happens in New York, said Kate Sinding, senior attorney for the Natural Resources Defense Council in New York City.

“There are very smart, experienced lawyers who have made the case both ways,” she said. “Most folks agree there’s enough ambiguity that it’s going to be up to the courts to decide.”

The DEC said a 60-day public comment period on the state proposal will begin in August. The department will then need to review and reply to those comments before incorporating any changes they see fit into the final rules. In a news conference last week, Martens said it’s unlikely that the process would be complete this year.

Good for New York I say ... way to put emotion and fear mongering over science. Now to the gas companies I say shut down the pipelines feeding the Empire state and let them burn the bullshit from Albany and the “activist community” for warmth this summer.

Stay on your feet New York!

A Canadian road story!

Dawson Creek, North Eastern, British Columbia, Canada home of the record holding single well record of 26 million gallons of free potable water used down one (1) well, have been severley flooded (naturally), had their watershed fracked to their water’s limit by our friendly hydaulic fracturers (Dawson Creek which is “huge” couldn’t give up any more fresh water), now are being flooded again with B.C. Hydro not being able to navigate the roads to fix and provide hydro power due in large part to over loading by these enormous tanker trucks…I wonder where they came from (100 wells/1000 tanker trucks)?

John Zimmermann

July 8, 2011, 2:08 p.m.

Anaerobic Digester’s the answer to two problems Energy and Pollution

Yeah they really need to stay warm this summer Mike H., what?? Americans have the right to say no to private industry for private gain on their land AND public land PERIOD!! No American should be forced to live in an industrial waste zone or risk their drinking water being contaminated by a private company.

@ Kathleen M ... whoops, meant winter.

As for the rest of your post, you should be well aware that even the EPA chief has admitted there hasn’t been so much as one confirmed case of groundwater contamination from drilling fluids related to hydraulic fracturing .... ever.

In 1956 as a nine year old I went to Watertown, N.Y and spent $1 American, it was worth a dollar and two cents Canadian…was scouted playing hockey by the Rangers, played in Syracuse, had a hole in one playing golf in Liverpool, N.Y. Mike, we love New York, don’t give us the old line of BS, as New York Detective Jimmy “Pop Eye” Doyle once told us…“It’s dirty, I know it’s dirty!”

Good old company man Mike H selectively refers to part of a response by Lisa Jackson in late May of this year.  By so doing, he terribly distorts the meaning of what she said.  Here is Mike, “the EPA chief has admitted there hasn’t been so much as one confirmed case of groundwater contamination from drilling fluids related to hydraulic fracturing .... ever.”

Here’s the actual exchange:  ” “Is there any evidence that hydraulic fraction… can affect aquifers and water supplies?” Rep. Gerald Connolly, D-Va, asked.‬

“There’s evidence that it can certainly affect them,” Jackson conceded. But as far as evidence it ever has, she said “I am not aware of any proven case where the fracking process itself has affected water, although there are investigations ongoing.”

Mike, why distort?  No one has ever looked before, so how could there be evidence of “confirmed” cases?  Now, people are paying attention.  Even the immensely wealthy oil and gas industry can’t keep shutting everyone up (although you would just love that, wouldn’t you)?

Ronald C. Sander

July 8, 2011, 8:37 p.m.

You may have missed the extensive report published in May 2011 in the Proceedings of the National Academy of Sciences. It was a peer-reviewed study done by four professors at Duke University. 

The study by the four professors found “that the type of gas detected at high levels in the water was the same type of gas that energy companies were extracting from thousands of feet underground, strongly implying that the gas may be seeping underground through natural or man made faults and fractures, or coming from cracks in the well structure itself.”

“Our results show evidence for methane contamination of shallow drinking water systems in at least three areas of the region and suggest important environmental risks accompanying shale gas exploration worldwide,” the article states.

The Duke group tested 68 drinking water wells in the Marcellus and Utica shale drilling areas in northeastern Pennsylvania and southern New York State. Sixty of those wells were tested for dissolved gas. While most of the wells had some methane, the water samples taken closest to the gas wells had on average 17 times the levels detected in wells further from active drilling. The group defined an active drilling area as within one kilometer, or about six tenths of a mile, from a gas well.

The average concentration of the methane detected in the water wells near drilling sites fell squarely within a range that the U.S. Department of Interior says is dangerous and requires urgent “hazard mitigation” action, according to the study.

Perhaps skeptics of the Duke report are not aware of what it takes to get a peer-reviewed study published in the Proceedings of the National Academy of Sciences. A peer-reviewed study is the toughest study to get published because because all the data, findings and conclusions have to be checked, rechecked and checked again for accuracy, logic, etc. by multiple levels of senior people at the writers’ organization and then again by at least four other equivalent but separate National Academy of Sciences scientific organizations.  Finally it is distributed to 100s of relevant scientists in the National Academy of Sciences for their review and approval. And only then will it be published in the Proceedings of the National Academy of Sciences.

Skeptics can ignore the facts of the Duke report - but the facts still remain. Will fracting gas companies submit to such a review process?

@ Ronald C. Sander

I didnt miss anything. Perhaps it was you who missed this bit from your precious Duke study.

We found no evidence for contamination
of drinking-water samples with deep saline brines or fracturing

Interesting considering that the Duke team didnt sample wells at random, they only sampled wells known to be problematice. So even problematic wells known to be leaking gas were still tight enough to not be leaking produced water.

Gerald Abrahamson

July 9, 2011, 10:42 a.m.

The problem is the massive liability of the drilling company when they destroy the underlying area with the results of their fracturing. They declare bankruptcy—and leave the public with the cost of destroyed businesses (go ahead—we want to see *you* live and work where the *water* and *land* is unusable). This is literally *destruction* the land for centuries into the future for *possible* “profit now”.

So when we propose a zoo for our property down the block from Mr. West’s house, I know he’ll understand!

So when the fracking company fracks under my property and extracts the gas do I get a payment?  And when all the gas under my property is gone and my property becomes a transportation way for the next guy’s gas do I receive a transportation fee?  Or just polluted water.
The problem is no one trusts private corporations to do the right things when it comes to protecting the environment or human life or the right to know so we can protect ourselves.  Nor do we trust our elected officials since they can be bought and controlled through campaign contributions and lobbying.  It has become very hard to judge and understand the rules and regulations needed to control this process since knowledge of the process is secret.  We do not know: how to nondestructively test and monitor the wells, what to do with the waste water and if it can be recycled, how to capture the released methane, what to do with the released radon gas, what chemicals are involved and if they are being stored in a safe and secure manner.  New York State should issue no further permits until these questions can be answered and the Hudson Valley, Delaware River and the Finger Lake Region should always be out of bounds.

The duke study may not have sampled long enough to see fracking fluid migrate through the aquifer to the sampling sites.  Fracking fluid components move at differential rates depending upon their individual water solubility.


The bottom line is not about companies making a profit, or land owners getting rich, its about our freedom.  America is being held hostage by the countries that supply us with oil and natural gas….whiy?  Why, when we have our own supply of both.  I’m not a representative of big oil, I’m just PA resident with a bachelor degree in biology who is currently working as a roughneck for Patterson-UTI.  Finally making enough to support my family of six, two of whom start college this fall.  Why do you not want to see Americans succeed, why do you not want America to succeed.  All of those trucks, are driven by Americans, all of those guys working to fix the roads are Americans, as well as the welders, the suppliers all of them Americans working here in America.
We have the technology to protect the environment, there are ways to maintain the environment other than abstinance.  America can be great again, but we have to stand on our OWN TWO FEET!  To do that we have to declare our independence from foreign oil, and hopefully someday oil all together.

Mr. Shreck: Do you have a gas well on your property next to your family of six?

I do not have enough acreage (only 2.5), a well requires a minimum of 10 acres to provide for a safe and environmentaly sound site.  But to answer your real question, would I have one or near my home…YES!  The main bitch that people in Northeast PA have is the truck traffic.  Which is understandable due to the fact that most of the roads the industry uses are quiet country roads.  But its a temporary situation, once the wells are completed, the trucks are gone, the industry repairs the roads and the peace and quiet returns.  As far as peoples wells and water supplies being affected, I would like to know how?  When we air drill through the water table, then cement the steel casing in.  So I’m unclear how fracking is suppose to affect the water supply, when the rock formations that are being fracked are so much deeper than the water table…... again keep in mind I have a degree in biology and have not only studied water but geology as well.  People are afraid of change, so much so that they rather stay slaves to foreign oil and watch our Country slowy die at the hands of their captures.  This makes no sense to me, why should our lives be so affected by the most volatile area of the Earth.  We have the means and the technology to be a great country again, we just have to be willing to.
Unfortunately…... we as a Country will wait until something really dramatic happens in the middle east that sends gas prices up to $10-$20 a gallon before we decide using our own resources makes sence.  Or of course the worst could happen, that being when China owns our Country, they won’t think twice about drilling for gas and oil.  Do really think it can’t happen?  Who owns our debts…..?

This article is part of an ongoing investigation:

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.

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