‘Watershed moment’ for fracking foes?

Opponents of fracking are feeling emboldened by a ruling in New York’s highest court that found towns can outlaw the controversial drilling practice.

{mosads}Environmentalists are cheering the decision against hydraulic fracturing as a major step toward more local control over the natural gas production. Industry groups, on the other hand, fear the ruling could results in a patchwork of local rules that slow development of the booming energy source.

“I think it’s a really watershed moment for the movement,” said Deborah Goldberg, an attorney with Earthjustice who argued the New York case for one of the towns involved.

“People all over the country have been watching what’s been going on in New York, and what this says to them is that if you work with your neighbors and you educate yourself and you organize and you work with local government, you can stand up to industry and win.”

“We’re already seeing a nationwide trend of towns, cities and counties across the country taking their own fracking fate into their hands like this,” said Kate Kiely, a spokeswoman for the Natural Resources Defense Council. “This ruling sets precedent that it will be protected in New York — and hopefully inspires other communities across the country to continue following suit.”

The gas industry fears the ruling will empower inexperienced town council members to tie their drillers up in red tape.   

“From our standpoint, a patchwork approach is much more challenging, and really much less of an effective system than statewide regulation,” said Frank Macchiarola, the executive vice president for government affairs at America’s Natural Gas Alliance (ANGA).

In the June 30 decision, the New York Court of Appeals ruled that Dryden and Middlefield could both use their zoning powers to completely ban fracking, the process of forcing fluids at high pressure into gas wells to release gas from shale formations that would otherwise be unattainable.

The rise of commercially viable fracking in the last decade has fueled a natural gas renaissance in the United States, making it the No. 1 producer of gas worldwide.

But fracking has drawn fierce opposition from environmentalists, who claim the practice can harm drinking water, streams and sensitive landscapes while emitting methane, a greenhouse gas, into the atmosphere.

After the federal government exempted fracking from a wide range of environmental policies, and many states declined to act, towns have sought to regulate the practice themselves in states such as New York, California, Texas and Pennsylvania.

New York’s ruling came from a state court, so it only applies there. But other states may nonetheless look to New York for guidance.

“From a strictly legal perspective, this decision is not binding in any other state,” Goldberg said. 

“On the other hand, the high courts do commonly look at what other sister courts are doing when the issues are the same.”

“I think it does have significance for other states,” said John Nolon, a professor in land use at the Pace University School of Law in New York City. “To the extent that this decision is based upon New York State’s delegated land use authority to local governments, it resonates in the other states.”

Nolon said states have similar laws that delegate zoning authority to local governments, a concept known as home rule, so the logic behind New York’s ruling should largely hold true elsewhere. The ruling reinforces that unless a state’s legislature specifically exempts certain activities from towns’ zoning powers, the towns retain them.

“To pick one thread and pull it out of the fabric is something that the state legislature can do, but I don’t believe the courts are going to lightly imply that they’ve done that,” Nolon said.

New York’s top court is not the first to give towns more power to regulate fracking.

Last year, judges in Pennsylvania overturned a law that took away towns’ ability to zone fracking out of certain areas, but did not go so far as to allow outright bans.

The judges based that decision on Pennsylvania’s constitution, which requires the state to “conserve and maintain” resources.

In states with similar doctrines, the Pennsylvania decision is “an extraordinary document,” Goldberg said.

The natural gas alliance said other states shouldn’t try to follow New York’s lead, since it already has a moratorium on fracking while the state’s health department studies its effects.

“The practical effect … is two localities in New York state, a state where there’s a moratorium on hydraulic fracturing to begin with. It’s limited to New York state,” Macchiarola said.

The industry’s main objection to local control of fracking is that state governments usually have the expertise to decide where and how fracking should be allowed. But town governments can also turn over frequently, leading to an uncertain road map for a drilling process that costs millions of dollars to start and is meant to provide years of returns.

“It’s just going to introduce more uncertainty for the development of natural gas for those who were interested in investing in New York,” said Karen Moreau, director of the New York State Petroleum Council, a part of the American Petroleum Institute.

“This is something that takes years to plan, to seek permits on, before you sink roughly $10 million per well into a locality.”