Can New York town governments, using their long-standing land use planning and zoning authority, ban gas drilling in their jurisdictions? The Towns of Dryden and Middlefield say, "Yes." Gas drillers and landowners say, "No."
The Towns of Dryden and Middlefield, both located in the heart of Marcellus shale gas territory, enacted zoning laws prohibiting gas drilling in their jurisdictions. In 2012 gas drillers and a large landowner took the towns to court. Two separate Supreme Court judges ruled in favor of the towns. The drillers and landowner then appealed their cases to an Appellate Division court that is expected to announce its decision in the coming weeks.
Judging from the number of "friends-of-the-court" briefs filed, interest in this case extends well beyond two tiny New York towns.
Fifty New York towns, including the town of Wales, have filed a brief expressing their support for the lower court's rulings in favor of Dryden and Middlefield. The Association of Towns of the State of New York and the New York Conference of Mayors have also filed briefs stressing the responsibility of towns to control how their land is used and to protect the health and safety of their citizens.
The drillers and landowner have plenty of supports too. The American Petroleum Institute, a national association representing 500 corporate members, claims to be, "The only national trade association that represents all aspects of America's oil and natural gas industry." Both the API, the Chamber of Commerce of the United States and the National Association of Royalty Owners contend that gas drillers should be allowed to disregard local land use restrictions when setting up their drilling rigs.
At the state level, the Independent Oil and Gas Association of New York and the Business Council of New York believe efficient exploitation of gas resources requires the ability to drill wherever they find the gas. Drillers simply do not want to contend with a patchwork of local zoning restrictions.
At the local level, pro-drilling briefs have been filed by the Joint Landowners Association of New York and Clean Growth Now, a collection of 17 groups including, the New York State Black Chamber of Commerce, Southern Tier Economic Growth, the Northeast Council of Carpenters, the Greater Binghamton Chamber of Commerce and the Associated General Contractors of New York State. Here the quest for jobs and the rights of property owners take priority over the rights of town governments to act on behalf of their communities, as a whole, and in the best interest of their citizens.
The stakes are also high for the state Department of Environmental Conservation. For decades DEC has controlled not only how, technically, drillers go about their job, but also where they could drill. Depending on how the Appellate Court rules, in the future local governments may have a lot more to say about the "where."
Stay tuned. Since the impacts of gas drilling extend well beyond drillers and town officials, a lot of folks in Erie, Chautauqua and Cattaraugus counties will be watching as this courtroom drama unfolds.
Ronald Fraser is a member of the Environmental Planning Board in the town of Colden.