Court rulings could stop controversial method in NY
By John Mason
Published: Wednesday, February 29, 2012 2:10 AM EST
MIDDLEFIELD — A local law firm played a large part in recent developments that may have spelled the end of the road for the horizontal, high-volume hydraulic fracturing, or hydrofracking, industry in New York state.
The firm Rapport, Meyers defended Middlefield, Otsego County against a suit brought by Cooperstown Holstein Corp. George Rodenhausen, the lawyer who argued the case, called the rulings “decisive” for the hydrofracking industry in New York state.
“If I were working for the industry, I would not appeal,” he said. “I would go to Pennsylvania.” Also working on the case were Victor Meyers, Cheryl Roberts and Victoria Polidoro.
Hydrofracking is a process that involves sending a mixture of water, sand and chemicals deep into the ground to break apart rocks to release natural gas that is captured and brought to the surface. There has been resistance to it because of the possibility of aquifer contamination from the fracking as well as from containment ponds of contaminated water.
The decisions, rendered Tuesday in Dryden, Tompkins County and Friday in Middlefield, were good news for home rule: both judges ruled that municipalities have the right to ban fracking within their borders. Middlefield was being sued by for its June 14, 2011 zoning law banning “all oil, gas or solution mining and drilling.”
Meyers called it “a victory for home rule.”
“If they do take an appeal, it’s always better to be a respondent than an appellant,” he said. “The decisions were on firm ground.”
Roberts said other parts of the country will be looking at this decision as a precedent.
At issue was a statute of the state Environmental Conservation Law declaring that “the provisions of this article shall supercede all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries.”
Lawyers for Cooperstown Holstein argued that the Middlefield zoning law was superceded under this statute. They pointed to such legislation as Article 3-A of the 1963 Conservation Law, which states “it is hereby declared to be in the public interest to foster, encourage and promote the development, production and utilization of natural resources of oil and gas in such a manner as will prevent waste …”
“The key word is ‘regulation,’” Roberts said. “‘Regulation’ has been interpreted (under this ruling) to mean regulation of the industry, not land use regulation.”
Otsego County Acting Supreme Court Judge Donald F. Cerio Jr. looked back at the history of laws regulating oil and gas drilling in New York, particularly three laws from 1963, 1978 and 1981, and found that, while the state can pre-empt local laws “as to the method and manner of oil, gas and solution mining or drilling,” it “does not pre-empt local land use control.”
Based on this, he denied Cooperstown Holstein’s motion to void Middlefield’s zoning law.
“I knew we had won the case because he had no questions for me, but several questions for the lawyers for the industry and the property owner,” Rodenhausen said. “They were arguing it’s in the nature of gas drilling that you have to see that pre-emption is implied. The court asked, ‘Do you mean that the State Legislature pre-empted everything?’ The attorney said, ‘Yes.’”
Ceresia went on to ask, said Rodenhausen, if this meant towns had no rights at all, since their zoning could be overridden — a well could be placed next to a church or a school, or under an organic farm?
“The questioning was a clear indication he was on our side,” Rodenhausen said. “He was very familiar with gas and oil leases. He was knowledgeable about the intersection of oil and gas leasing and zoning, although this was the first time it’s been brought up in this state.”
“Because we were able to show they had not expressly done it, they said it was by implication,” Rodenhausen said. “You can’t override the constitutional right of the people by implication.”
In addition to the persuasiveness of the defense’s arguments, he said, “I think (the judge) was impressed by the fact that we had a pretty full courtroom of people from the town of Middlefield, concerned about their future.”
The agricultural community depends heavily on tourism.
“Their major industry is a brewery, Brewery Ommegang, that uses the water to make beer,” Rodenhausen said. “The plaintiff is a farmer who’s already signed up a number of leases. Her property is adjacent to the brewery; her well would have gone under the brewery.”
The well would have put the brewery out of business, either by contaminating the water, or, if not that, by the doubts it would have created in consumers, he said.
“The judge had read every single paper we submitted,” Rodenhausen said. “He was extremely well informed. I think he recognized that home rule through zoning and land use powers cannot easily be overridden in New York. I don’t think the Legislature will easily override this in the future; if they tried, I think they’d face (strong opposition).”
In addition to affecting the aquifer, Roberts said, a fracking industry would mean a tremendous increase in truck traffic for a locality.
“They have to truck in all the water that (will be used for fracking), 1.3 million to 9 million gallons per well,” she said. “Fracking fluid is then added to the water and it becomes hazardous; then you have the trucks leaving with the contaminated water.”
For a community like Middlefield, that’s based on tourism and farming, “this is an industry that’s going to disrupt those other types of land uses,” Roberts said. The Chamber of Commerce wrote a letter and found out the Park Slope Co-op in New York would no longer accept the town’s vegetables.
Meyers said the practice of fracking raises a lot of serious questions “in terms of the ground water and even the surface water — the holding ponds, the whole system is fraught with potential environmental hazards.”
Rodenhausen said the Dryden and Middlefield decisions “should encourage town boards and citizens to have their towns ban fracking. I think any town that permits fracking would be the exception.”
He said Rapport, Meyers would continue with the case to the Appellate Division if it goes there, but he wasn’t convinced the decision would be appealed because of the strength of the winning argument.