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After Two Towns Beat the Fracking Industry in a Top State Court, Can Others Follow?​

Frustrated with state politicians, activists are testing the ability of local government laws to keep the extraction industry out.
 
 
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Photo Credit: A Katz/Shutterstock

 
 
 
 
Until recently, few people outside New York had heard of Dryden and Middlefield. But these two towns are now on the lips of environmental activists everywhere as they’ve become part of the battle cry against hydrofracking.​
 
New York’s highest court issued a 5-2 decision upholding the legal theory called "municipal home rule" that has supported scores of municipal bans on oil and gas production in the state. Dryden and Middlefield's cases were the first to reach the state's Court of Appeals. The two upstate communities were being sued by large energy corporations that insisted they had a right to frack within their jurisdictions although both towns had zoning laws in place that prohibited some of the practices involved in hydrofracking.​
 
This decision has broad legal implications, not only for other towns in the state, but for municipalities across the U.S. that are trying to prohibit fracking. While the ruling holds no legal precedent outside New York, it's not uncommon for regional and state courts to reference legal proceedings in other states when handing down decisions.​

“This is a victory for local control,” say Linda Lavine, a Dryden Town Board member. “It is a victory for liberals and conservatives of all sorts. It is what democracy is all about.”​

At issue in the case was whether the two towns had the right, under New York's home rule laws — which allow municipalities the ultimate authority regarding land use — to use existing zoning laws to limit industry in the town. The plaintiffs, notably the multi-billion-dollar Anchutz Exploration Corporation, insisted that state regulations on energy extraction superseded any town zoning regulations that would either limit or effectively ban an industry from operating there.​

But the court backed Dryden, and the opinion was even written by Judge Victoria A. Graffeo, a conservative who was appointed by George Pataki, the state’s former Republican governor. The New York court considered the case to go beyond hydrofracking to explore the issue of whether the state’s villages, towns and cities have the right to enforce land use, and whether the state has the power to invalidate zoning laws passed by the towns.​

“At the heart of these cases,” wrote Graffeo in her opinion, “lies the relationship between the State and its local government subdivisions, and their respective exercise of legislative power. These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits.”​

As this case about municipal rights is settled in New York, the only question left is whether Gov. Andrew Cuomo will make a six-year old state moratorium on new hydrofracking operations permanent. Political observers say Cuomo will wait until after the 2014 gubernatorial election to do so.​

While Cuomo has taken progressive stances on a few issues such as marriage equality and gun control during his first term, he has done so only when public opinion is heavily weighted to the left. Mostly, he introduces or folds to centrist to right-wing positions on issues such as corporate taxes, charter schools and marijuana reform. But as New Yorkers are almost evenly split on hydrofracking (New York City and upstate voters favor a ban, while suburban New York voters don’t) Cuomo has tiptoed around this issue as a clear mandate does not exist to provide him enough political cover in either direction.​

Cuomo has told New Yorkers that he will wait for the state Health Department’s review of potential health risks associated with fracking to make a decision, but this review has gone on for nearly two years. Emily Wurth, water program director at Food & Water Watch,​​ notes that Cuomo is being relatively careful among governors on this issue, despite frustrations that many in the state have with what appear to be delay tactics.​

 
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