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When the Dryden Town Board jumped into the legal fray, unanimously passing a local law to ban fracking in Dryden, Lansing took a much more conservative approach.  The Town Council decided to take a 'wait and see' approach that would be less likely to subject the Town to costly litigation.  Lansing Town Supervisor Kathy Miller says Monday's NYS Court Of Appeals decision upholding the Towns of Dryden and Middlefield's right to enact fracking bans changes all that.  Miller asked fellow board members Wednesday to consider enacting a ban in Lansing.

"Personally I would like to see a ban," she says.  "A very high percentage of Lansing residents said they want a ban in a poll conducted after an election and in the survey (a telephone survey of Lansing residents conducted to help drive the direction of a comprehensive plan update).  A very high percentage said they would like to see a ban, so I would like to follow through and have a ban in Lansing."

Lansing's moratorium on fracking is in its second year.  Technically the moratorium is on heavy industry activities that would preclude gas drilling, among other things, within the town.  The purpose is to update various laws and ordinances to protect the town from the possible consequences of hydro-fracking.  Miller says she thinks it will now be possible to get a ban passed by the board, especially because of the threat to town roads and a drive to attract tourists to the town.

"I think we have a lot to protect here," she says.  "It's a beautiful area.  We're trying to build tourism.  All of these things, and drilling would be antithetical to that.  I would like to ban fracking and develop these other things."

Miller asked board members Wednesday to talk about whether they would like to pursue a gas drilling ban.  Councilman Robert Cree said the reason they passed a moratorium was to gather more information before deciding on what course to take, but Miller said that Town Attorney Guy Krogh told her the Town can go ahead with a ban if the Board chooses to.

"As of now the Court of appeals has ruled that a municipality has the right to ban different types of mining practices partially or wholly in their town," Krogh said.  "It doesn't mean the issue is over.  There will probably be other types of challenges.  But as of right now you have the ability to impose a ban without the risk of immediate challenge or serious lawsuit."

Most people agree that the likelihood of actual drilling in Lansing would not happen any time soon, or possibly at all.  But over the past three years board members have expressed concerns about the wear on Town roads and uncertainty about the contents of waste from hydrofracking, which drilling companies have not been forthcoming about.  Roads in the Town belong to three different governments: the Town, the County, and the State, and the main arteries within Lansing are state roads, including East Shore Drive, and Ridge and Auburn Roads.  Miller says a drilling ban would not necessarily protect those roads.

"I believe we would have to put some other things in place to protect our roads," she said.  "We would need road laws and agreements.  The good thing about it is that most, if not all towns in the County will probably jump on the bandwagon and also want to pass bans.  If it is allowed in New York State it would probably start in the southern part of the state and they're in favor of it.  If there was a place they were taking the waste it could be trucked through here.  We don't know that yet, but we certainly could put weight restrictions on our roads.  Even without a ban I think we should start looking towards doing that."

Krogh noted Wednesday that enacting a ban is a policy decision.  He noted there are opposing views within the Town.  Councilwoman Ruth Hopkins noted that the telephone survey conducted to help drive the comprehensive plan upadte showed that around 70% of Lansing residents would like to see a fracking ban.

Krogh recommended that if the board does impose a ban that it based on a zoning update.  He repeated his recommendation that a ban be based on heavy industry as a category, rather than a particular industry such as gas drilling, to make a ban safer from future challenges.

"It's very clear that the Court of Appeals was saying that as built on the backbone of zoning, it is clearly within the municipal home rule powers of municipalities in New York State as a result of the New York State Constitution to ban this practice within their boundaries.  It's less clear as to the validity of a pure, stand-alone local law based on police powers that don't have the direct history of zoning behind them.  Both Dryden and Middlefield built their bans on the backbone of zoning.  So it would be my recommendation that if you want to do it safely you do it on the backbone of zoning."

Miller says that existing heavy industry in the town like the Cargill salt mine will not likely be impacted by a future law.  She says that despite some trepidation about how the existing moratorium would impact mine business, it has had no impact at all.  She adds that Cargill, the biggest user of trucking in the town, might be grandfathered into any future law.

"I wouldn't want to affect Cargill," she says.   "It's not just the trucking with fracking -- it's the use of the chemicals.  I'm not sure how I'd feel about this if they didn't use those chemicals, but life is fraught with too many chemicals right now.  We don't know what's causing what.  it's a risk we shouldn't take, and then find out ten years down the road that we took this risk and this is what we have -- another Love Canal."

Krogh noted that the comprehensive plan update is in progress and a future zoning update would be the most solid grounds on which to base a ban.  He said a blanket amendment to current zoning law is another way to do it, or a stand-alone law.

Miller said the board will continue to discuss a ban.

"We'll chat and get back to you," she told Krogh.

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