Posted September 19, 2011 Law suits filed against towns that banned fracking- what does it mean?

Citizen and environmental groups have been encouraging towns and villages in Upstate NY to overcome the fear of litigation and pass ordinances that prohibit heavy industrial uses, such as hydrofarcking. The first two pro-drilling law suits were recently filed against such ordinances. What will the impact be on efforts to protect our communities from the dangerous practice of fracking?

First, it is important to note the timing of the two suits. Both actions, one by a drilling company against the Town of Dryden and the other by a landowner against the town of Middlefield, were filed just as candidates for office in both towns enter the campaign season. The timing is not coincidental. Incumbent officials in both towns are viewed by pro-drillers as a roadblock to fracking. What better way to discredit the incumbents than than to say “see, they got you sued”? The law suits may also be an attempt by the pro-drilling lobby to influence the DEC as it prepares regulations for hydrofracking. Regardless of the motives, both law suits are seriously flawed and stand a good chance of being dismissed or defeated. The plaintiffs will have difficulty in demonstrating both “standing” and “harm.” Neither plaintiff has requested or been denied a permit to drill. Neither plaintiff has invested or lost any money other than purchasing mineral rights in the towns, something, which has long been recognized by the courts as speculative and absent a guarantee of a financial return. Both lawsuits were filed before any company actually conducted high-volume horizontal hydrofracking in NY State which makes the argument that they are denied the right to compete in the marketplace untenable. Finally, the large landowner will have a very difficult time convincing the court that without drilling she has absolutely no other way to make money from her 300 acres of land.

Ultimately, these two lawsuits may help clarify and validate the long-standing right of towns to protect themselves through zoning under NY State’s Home Rule statutes. In the interim, it is critical that residents support the various efforts by legislators at the State-level to strengthen the existing Home Rule language and to ensure the contention that State law ECL 23 preempts zoning rights is finally put to rest. It is also important that towns and villages across the state continue to update their zoning to prohibit heavy industrial uses and consider pooling legal resources to defend themselves from an industry bent on exploiting Upstate NY at the expense of the health, safety and quality of life of its residents.