Precedent-Setting Fracking Court Battle Advances In New York’s Highest Court

Case on local bans comes as growing number of communities take similar action


Kathleen Sutcliffe, Earthjustice, (212) 845-7380

A precedent-setting court battle over fracking before New York’s highest court advanced today, with lawyers filing briefs asking the court to uphold the Town of Dryden’s gas drilling ban.

The decision by the New York State Court of Appeals, expected sometime next year, would cement the rights of the more than 170 towns in New York that have passed bans or moratoria on fracking and could give encouragement to the increasing number of communities across the country opting to place limits on the controversial practice. Last month, voters in four Colorado towns approved local ballot initiatives banning fracking. Just last week, the City of Dallas approved a de facto ban on oil and gas drilling within city limits.

“When the oil and gas industry tried to push us around, we did not back down. Our town has the right to determine how we want land to be used. And time after time, the courts have agreed,” said Dryden Town Supervisor Mary Ann Sumner. “I hope leaders in other towns threatened by this industry will be encouraged and realize that they too can stand up for what’s right for their town.”

In May, a mid-level state 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 within their own borders. Lawyers for the oil and gas industry filed appeals, sending the cases to the New York State Court of Appeals. The Town of Dryden is represented in the case by the nonprofit environmental law organization Earthjustice.

“This precedent-setting case will settle the matter once and for all across New York State and, we hope, send a firm message to the oil and gas industry,” said Earthjustice Managing Attorney Deborah Goldberg. “For too long the oil and gas industry has abused people and communities, expecting to get away with it. That behavior is finally coming back to haunt them, as communities across the country stand up and say ‘no more.’ Earthjustice is proud to be standing with, and fighting on behalf of, one such community.”

Dryden’s fight 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.

Just six weeks after the Town Board’s unanimous, bipartisan vote, Anschutz Exploration Corp. (a privately held company owned by a Forbes-ranked billionaire) filed a lawsuit 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 of the lawsuit, and Norse Energy Corp. USA, a now-bankrupt U.S. subsidiary of a foreign-owned oil and gas company, took over the appeal, which it also lost.

Read the brief of respondents.

A fracking drill rig in Pennsylvania.
A fracking drill rig in Pennsylvania. (Chris Jordan-Bloch / Earthjustice)

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