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Appeals court upholds New York towns' anti-fracking laws

By Bob Downing Published: May 2, 2013

From Bloomberg News:



Anti-fracking laws passed in two New York towns were upheld by an appeals court, which rejected arguments by a dairy farm and a Norwegian energy company that the bans are superceded by state law.

An appellate panel of the New York State Supreme Court inAlbany today ruled that drilling bans in the towns of Dryden and Middlefield don’t conflict with state regulations for the oil and natural-gas industry.

The state law seeks to protect the right of the general public, not just the owners of oil and gas properties, “a goal which is realized when individual municipalities can determine whether drilling activities are appropriate for their respective communities,” the court said.

The bans are aimed at stopping hydrofracturing, a process known as fracking that involves forcing millions of gallons of chemically treated water underground to break up rock and free trapped natural gas. The practice has sparked environmental concerns and lawsuits across the U.S.

Parts of New York sit atop the gas-rich Marcellus Shale formation, and state officials have sought to balance prospects for the booming economic development seen in Ohio andPennsylvania against environmentalists’ warnings that fracking may damage water supplies and make farmland unusable.

Dairy Farm

Attorneys for Norse Energy Corp. (NEC) and the dairy farm, Cooperstown Holstein Corp., urged the appeals court in March to overturn lower-court rulings in favor of the two towns.

The dairy farm, which signed two oil and gas leases in 2007 with Elexco Land Services Inc. to explore and develop natural gas resources under the property, said in a September 2011 lawsuit that Middlefield, a town of about 2,000 people 50 miles (80 kilometers) west of Albany, had no authority to enact a ban because the activity is governed by state law.

Anschutz Exploration Corp., a Denver-based affiliate of billionaire Philip Anschutz’s closely held company, sued Dryden, a town of 14,000 people about 75 miles west of Middlefield, the same month.

Justice Phillip Rumsey in Cortland upheld Dryden’s ban on Feb. 21, 2012, and Justice Donald Cerio Jr. in Wampsville ruled days later that Middlefield’s was also legal. The cases were consolidated for appeal. Norse Energy, a Lysaker, Norway-based explorer whose U.S. unit filed for bankruptcy protection in December, replaced Anschutz Exploration in the Dryden appeal.

Ban Upheld

Just a week before the appeals court in Albany heard the arguments, Justice Robert B. Wiggins in Livingston County upheld a ban in Avon, a town and village of about 11,000 people about 19 miles southwest of Rochester.

The Marcellus Shale beneath parts of New York, Ohio, WestVirginia, Pennsylvania, Maryland and Virginia has an estimated 400 trillion cubic feet of natural gas, one of the largest such formations in the world, according to trade groups that represent companies with natural gas-leases in New York state.

Fracking already is banned in more than 50 New York towns, while dozens more have moratoriums in place or are considering bans, according to Karen Edelstein, a geographic information-systems consultant in Ithaca.

U.S. District Judge Nicholas G. Garaufis in Brooklyn, New York, in September threw out a lawsuit by New York Attorney General Eric Schneiderman seeking a full environmental review of hydraulic fracturing. Garaufis granted a motion by the U.S. Environmental Protection Agency to dismiss the case, finding that the development plans are in the early stages and the threat of harm is speculative.

Water Supply

Schneiderman sued the Delaware River Basin Commission, the EPA and other federal agencies in May 2011 to force a fuller assessment of the environmental impact that gas development could have on the state’s water supply.

The river commission, created in 1961, is a pact among New York, Delaware, New Jersey, Pennsylvania and the federal government that is responsible for water quality in the Delaware River Basin, which supplies drinking water to the four states.

Schneiderman said in the lawsuit that the commission’s proposed regulations would allow fracking at 15,000 to 18,000 gas wells without a full environmental review. If the regulations are issued, New York’s moratorium will be lifted.

New York said it has shown that fracking generates millions of gallons of wastewater contaminated with toxic metals and radioactive substances, and that companies using the process in Pennsylvania have violated the law 1,600 times, harming the state’s water.

The cases are Anschutz Exploration Corp. v. Dryden, 902/2011, New York Civil Supreme Court, Tompkins County (Ithaca); and Cooperstown Holstein Corp. v. Town of Middlefield, 1700930/2011, New York Civil Supreme Court, Otsego County (Cooperstown).



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Utica and Marcellus shale web sites

Ohio Department of Natural Resources' Division of Oil and Gas Resources Management State agency Web site.

ODNR Division of Oil and Gas Resources Management. State drilling permits. List is updated weekly.

ODNR Division of Geological Survey.

Ohio Environmental Protection Agency.

Ohio State University Extension.

Ohio Farm Bureau.

Ohio Oil and Gas Association, a Granville-based group that represents 1,500 Ohio energy-related companies.

Ohio Oil & Gas Energy Education Program.

Energy In Depth, a trade group.

Marcellus and Utica Shale Resource Center by Ohio law firm Bricker & Eckler.

Utica Shale, a compilation of Utica shale activities.

Landman Report Card, a site that looks at companies involved in gas and oil leases.FracFocus, a compilation of chemicals used in fracking individual wells as reported voluntarily by some drillers.

Chesapeake Energy Corp,the Oklahoma-based firm is the No. 1 driller in Ohio.

Rig Count Interactive Map by Baker Hughes, an energy services company.

Shale Sheet Fracking, a Youngstown Vindicator blog.

National Geographic's The Great Shale Rush.

The Ohio Environmental Council, a statewide eco-group based in Columbus.

Buckeye Forest Council.

Earthjustice, a national eco-group.

Stop Fracking Ohio.

People's Oil and Gas Collaborative-Ohio, a grass-roots group in Northeast Ohio.

Concerned Citizens of Medina County, a grass-roots group.

No Frack Ohio, a Columbus-based grass-roots group.

Fracking: Gas Drilling's Environmental Threat by ProPublica, an online journalism site.

Penn State Marcellus Center.

Pipeline, blog from Pittsburgh Post-Gazette on Marcellus shale drilling.

Allegheny Front, environmental public radio for Western Pennsylvania.