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New York Towns Continue Battle Against Oil and Gas Company

In closely watched case, New York’s highest court takes up appeal
August 29, 2013
Albany, NY —

A town in New York is continuing its epic court battle with the oil and gas industry to keep a local fracking ban in effect as the New York State Court of Appeals today announced it would take up the appeal of Norse Energy Corp. USA. Residents of Dryden are gearing up for the next round of their fight to protect their way of life, joining hundreds of communities across the country that have fought the oil and gas industry.

“We are confident that the Court of Appeals will affirm, as two other courts have before it, that our town has the right, enshrined in our state Constitution and upheld by the courts, to decide how land is used within our town borders,” said Dryden Town Supervisor Mary Ann Sumner. “Still, the oil and gas industry is dissatisfied and stubbornly insists on dragging out this court case. Clearly, they’re not used to not getting their way.”

On May 2, a state intermediate appeals court ruled in favor of the Towns of Dryden and Middlefield, affirming lower court decisions upholding the Towns’ right to ban oil and gas development activities—including the controversial technique of fracking—within town limits. On May 31, oil and gas industry lawyers filed papers asking the Court of Appeals to review the decision. There will be no further opportunities to appeal the Court’s decision after it rules on the case.

“Every court that has had the opportunity to address fracking in Dryden has upheld the local power to limit the use of land for oil and gas development. But the industry is hoping that the Court of Appeals will reverse those decisions,” said Earthjustice Managing Attorney Deborah Goldberg. “Our client, the Town of Dryden, is fighting the unwelcome industrialization of a quiet, rural community. And we’ll fight at its side until this matter is resolved once and for all.”

The Dryden case has taken on special significance. More than 20,000 people from across the country and globe sent messages to Sumner and her colleagues on the Town Board, expressing support for Dryden in its legal fight.

Dryden’s story began in 2009, after residents pressured by oil and gas company representatives to lease their land for gas development learned more about fracking, the technique companies planned to use to extract the gas. During fracking, short for hydraulic fracturing, companies inject millions of gallons of chemically treated water into the ground to break up rock deposits and force out the gas. Residents organized and educated their neighbors for more than two years under the banner of the Dryden Resource Awareness Coalition (DRAC), ultimately convincing the Town Board to amend its zoning ordinance in August 2011 to clarify that oil and gas development activities, including fracking, were prohibited.

More than 170 municipalities in New York have passed bans or moratoriums on fracking, prompting a nationwide groundswell—some 350 communities across the country have voted to take official action—from non-binding resolutions to improved protections to outright bans.

Just six weeks after Dryden prohibited fracking in 2011, Anschutz Exploration Corp. (a privately held company owned by a Forbes-ranked billionaire) sued Dryden over the zoning provision, claiming that localities did not have the right to ban industrial activity. Dryden successfully argued that its right to make local land use decisions, enshrined in the home rule provision of the New York State Constitution, applies to oil and gas development. In February 2012, a state trial court judge agreed.

Following that ruling, Anschutz pulled out, and Norse Energy Corp. USA, a U.S. subsidiary of a foreign-owned oil and gas company, filed an appeal. Shortly after filing its appeal, the company entered bankruptcy proceedings. If the Court of Appeals decides to review the case, it's not clear whether Norse will continue with the lawsuit or if yet another oil and gas company will step in.

Contacts

Kathleen Sutcliffe, Earthjustice, (212) 845-7380

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