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Appeals Heard in Fracking Ban Cases

11:48 AM, Mar 21, 2013   |    comments
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By Jon Campbell, Albany Bureau

ALBANY, NY-- A panel of state appeals court judges peppered attorneys Thursday with an hour of questions regarding a town's ability to zone out natural gas drilling, as attorneys for the gas industry and a central New York landowner asked them to overturn a pair of lower court rulings.

Two state Supreme Court judges last year upheld local laws passed by the towns of Dryden in Tompkins County and Middlefield of Otsego County, that effectively banned large-scale gas drilling and hydraulic fracturing within their borders. But attorneys for Norse Energy and Middlefield farmer Jennifer Huntington appealed the decisions, making their case to the state Appellate Division on Thursday.

The four appellate judges seemed skeptical of both sides' claims, questioning why the gas company's attorney believes towns do not have the right to regulate the industry in most instances and a Dryden attorney why a town's zoning laws extend below the surface.

Thomas West, an Albany-based attorney representing Norse, said allowing municipalities to ban drilling would create an unworkable situation for the gas industry, which is hoping to tap into the gas-rich Marcellus Shale stretching across the Southern Tier.

"You cannot justify investment in this state without regulatory certainty," West told the panel of judges. "This municipal issue is very unpredictable."

West and Huntington's representative, Broome County-based attorney Scott Kurkoski, argued that a 1981 amendment to the state's oil and gas law prohibits a town from regulating the gas industry, except for issues concerning local roads and taxes. The regulatory power falls to the state Department of Environmental Conservation, they argued.

But Alan Knauf, an attorney for the Dryden Resources Awareness Coalition, argued that a Court of Appeals decision regarding a state law that regulates sand and gravel mines showed that localities do have power when it comes to saying what can and can't happen in their borders. The Supreme Court judges cited the case in deciding in favor of the towns last year.

"You wouldn't think any industry would be exempt from zoning unless the law was very, very clear," Knauf said. "So why is this any different?"

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