First round in ‘fracking’ battle goes to county lawyers

HUDSON–Two court decisions last week made statewide headlines in cases involving hydraulic fracturing, commonly known as “fracking,” the controversial method used to recover natural gas from deep underground deposits. In both decisions, state Supreme Court judges ruled that local communities may use zoning laws to prohibit fracking.

Both cases involved towns in central New York, but one of those towns was represented by a Hudson law firm. And the decision rendered, if higher courts uphold it, could have far reaching implication for oil and gas drilling activities all across the state.

Cheryl Roberts of Spencertown was lead counsel on the litigation team along with George Rodenhausen. The team also included Victoria Polidoro, an associate, and Victor Meyers, a partner with the firm Rapport Meyers, LLP on Union Street. They prepared the case for the Town of Middlefield in Otsego County. Last Friday, February 24, Acting Supreme Court Justice Donald F. Cerio, Jr. threw out a challenge to the town’s zoning law, which bans fracking throughout the town.

Three days earlier, another state Supreme Court upheld the right of the Town of Dryden in Tompkins County to use its zoning law to restrict fracking within its boundaries.

Ms. Roberts and an attorney for the plaintiff in the case, a dairy farmer, agreed this week that the decisions are likely to be appealed, Ms. Roberts said that the ruling makes one thing clear at the moment for gas companies and landowners in Middlefield: “At least now they know where they can and they can’t drill.”

Hydraulic fracturing is widely used to search for and recover gas deposits trapped in rock formations deep below the earth’s surface. The current attention in this region is on a formation called the Marcellus shale, which runs west from near the Hudson River through all of central and western New York and south through Pennsylvania and may other states, where there are large deposits of natural gas. Marcellus shale deposits are not found in Columbia County, though another shale formation, called Utica shale, crosses a small portion of the Town of Stuyvesant, according to the state Department of Environmental Conservation (DEC).

Unlike conventional wells, which drill vertically into gas deposits, horizontal fracking wells drill down, sometimes thousands of feet, and then turn at a right angle and drill laterally. Next a solution of water and chemicals is injected into the well in a way that forces the natural gas into the pipe and up to the surface.

Some experts estimate the process requires as much as 8-million gallons of water per well, although the DEC uses a figure of 400,000 gallons. The DEC also anticipates that each well will use 167 tons of chemicals. Although the industry has been reluctant to release data about the chemicals it uses, some of the materials are known or suspected carcinogens.

One of the concerns that led Middlefield to zone out fracking is that as much as a third of the water-chemical mixture pumped into the well returns to the surface, sometime carrying additional undesirable materials with it including naturally occurring radioactive substances. In northern Pennsylvania, where fracking is widespread, the water for the wells is often trucked to the well sites, and the contaminated wastewater is hauled away for disposal, creating additional truck traffic on rural roads. The DEC estimates that construction and operation of each well may require as many as 1,300 truck trips.

New York has imposed a moratorium on permits for fracking in the state while the DEC determines how it will regulate hydraulic fracturing. The agency has to review and evaluate the 11,000 comments it received when it asked for public input on the process. DEC Commissioner Joe Martens has said he hopes to have draft rules ready by this spring.

No one argues that the DEC has the authority to regulate this gas drilling process under state law. But the state constitution reserves to local towns, villages and cities the right of “home rule,” which includes zoning. In his ruling last week in the Middlefield case, Justice Cerio accepted the argument by Ms. Roberts and her colleagues that the law makes a distinction between zoning and regulation when it comes to drilling. The state lets the town zoning determine where fracking can take place–or that it is inappropriate everywhere the town. As the judge wrote in his decision, “The state maintains control over the ‘how’ of such procedures while the municipalities maintain control over the ‘where’….”

The judge also threw out a claim by opponents of the Middlefield zoning law that state law can trump local zoning. He cited two cases provided in Ms. Roberts’ submissions in which the state’s highest court ruled just the opposite.

Although two judges in separate counties reached similar conclusions, Scott Kurkoski, one of the lawyers for the plaintiff, Cooperstown Holstein Corporation, said after the rulings that “complete bans are almost never upheld” by appeals courts. He also said that such bans would represent a “taking” of land by government, requiring that landowners be compensated. In such cases, “damages could be significant,” Mr. Kurkoski said. He said oil and gas companies might also sue for their losses.

Ms. Roberts sees the taking issue differently. She said that despite a ban on drilling, the dairy farmer could continue to farm and to use the property in many other ways, so the ban did not rise to the level of a taking.

A DEC statement described the recent decisions as just the first in a series of legal cases involving fracking. The agency’s statement goes on to say, “We are monitoring these cases closely as they move through the judicial process. These decisions do not affect DEC’s ongoing review of high-volume hydraulic fracturing and we are moving forward with that process.”

To contact Parry Teasdale email .

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