NY's Top Court Agrees to Hear Fracking Ban Cases

10:45 PM, Aug 29, 2013   |    comments
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By Jon Campbell,  Albany Bureau

ALBANY New York's top court will hear arguments in a pair of cases that challenge whether towns, cities and villages can ban natural-gas drilling within their borders, the court announced Thursday.

The state Court of Appeals agreed to take on cases against the towns of Dryden, Tompkins County, and Middlefield, Otsego County, despite unanimous rulings upholding those towns' drilling ban by a mid-level appeals court earlier this year.

"I think it's a good sign," said Tom West, an Albany-based attorney representing Norse Energy, the plaintiff in the suit against Dryden. "It doesn't matter how many judges ruled against us. It's a matter of law and it's a fresh look at the issue."

Both Dryden and Middlefield had passed zoning laws that officially prohibited gas drilling and hydraulic fracturing, the much-debated practice used to help extract gas from formations like the Marcellus Shale. In both cases, state Supreme Court and Appellate Division judges sided with the towns, ruling they were within their rights to keep the industry out.

West and Broome County-based attorney Scott Kurkoski, who represents a Middlefield landowner who sued the town, argued that the state's Environmental Conservation Law gives all regulatory authority to the state when it comes to oil-and-gas mining. The municipal bans, they argued, violated that law.

By agreeing to hear the cases, the Court of Appeals gives them new life. When the Appellate Division rules in a non-split decision, the top court has to grant a motion allowing for the case to be heard at the next level.

Last year, the Court of Appeals granted about 6.4 percent of those requests.

Meanwhile, large-scale fracking remains off limits in all of New York as Gov. Andrew Cuomo's administration continues to weigh whether to allow it. More than 100 municipalities across the state have moved to prohibit fracking -- either temporarily or permanently -- ahead of Cuomo's decision.

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