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NY Court Upholds Communities’ Right To Protect Residents From Fracking

Tim Hurst / Flickr

New York State continues wait for final word on hydraulic fracturing, the controversial gas drilling method on hold since 2008.  Monday's Court of Appeals decision upheld communities’ right to use traditional local zoning laws to keep fracking out of their borders.

The New York Court of Appeals ruling came in two cases decided jointly:  one brought by an oil company and the other a dairy farm that wanted to lease its land, challenging the towns of Dryden and Middlefield’s decisions to ban the industrial activity there.

The decision is seen as a blow to the oil industry, but it doesn’t change the larger question of whether fracking will begin in New York. Governor Andrew Cuomo is waiting for a health impact review from the state health department before making a decision on fracking’s fate in the state. The lengthy de facto moratorium has emboldened activists on both sides of the issue.

Former Albany Common Counil member Dom Calsolaro was instrumental in getting city legislation banning fracking passed.    "The New York State Constitution, Article 9, gives local municipalities the right to control what happens within their own borders. In fact, it doesn't give it to you, it requires it. The constitution states that local municipalities have to protect the health, safety, welfare and property - and that's the key - 'and property' of its residents."

Calsolaro attended the Court of Appeals hearing. He says the court apparently used some of the same materials to make its decision that he used as a basis to introduce local anti-fracking legislation in 2009. His measure passed in 2010.   "We actually passed it twice. Mayor Jennings at the time vetoed it. A few months later I brought it back. It passed at that time with 10 votes, which would have been enough for a veto override. And the mayor, he didn't veto it. He didn't sign it either, but it did go into effect without his signature."

Calsolaro says the local law protects the city water supply, the Alcove Reservoir. The reservoir is very close to Greene County, an area that would be a prime target for gas companies seeking Marcellus Shale gas. A two-lane road is the only way to access the water. Calsolaro believes fracking operations would use that road to locate and operate drilling platforms, where materials would be trucked to and from well sites.  "If something ever happened and leaked into our water supply, or there was an accident or a train tipped over, we'd really be in trouble because we only have a 10-day backup supply."

Travis Proulx, Communications Director with Environmental Advocates of New York, says the deep-pocketed fracking industry has been trying to cripple communities' rights to say "no."  "Dozens of communities here in the Capital Region have either permanently or temporarily banned fracking. And over 150 communities statewide. So the repercussions are huge: this ruling will have national consequences."

According to data collected by the League of Women Voters of the North Country, 12 counties in New York have passed legislation to control or ban the introduction of fracked waste and byproducts in their jurisdictions.

Brad Gill with The Independent Oil and Gas Association of New York says the industry is disappointed but not entirely surprised with the appeals court decision. Gill says there are concerns about New York's future ability to attract investor capital. On the upside, Gill hopes the news will prompt a decision from the governor.

Calls for comment to Governor Cuomo's office were not returned in time for broadcast.

Dave Lucas is WAMC’s Capital Region Bureau Chief. Born and raised in Albany, he’s been involved in nearly every aspect of local radio since 1981. Before joining WAMC, Dave was a reporter and anchor at WGY in Schenectady. Prior to that he hosted talk shows on WYJB and WROW, including the 1999 series of overnight radio broadcasts tracking the JonBenet Ramsey murder case with a cast of callers and characters from all over the world via the internet. In 2012, Dave received a Communicator Award of Distinction for his WAMC news story "Fail: The NYS Flood Panel," which explores whether the damage from Hurricane Irene and Tropical Storm Lee could have been prevented or at least curbed. Dave began his radio career as a “morning personality” at WABY in Albany.
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