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Hydrofracking opponents cheered Tuesday when NY State Supreme Court Judge Phillip R. Rumsey ruled that the Town of Dryden can regulate land use to effectively ban fracking within its borders.  Lansing took a 'wait-and-see' approach to controlling the consequences of hydrofracking on the town until this year when the town's Drilling Committee recommended that the town council implement a one year moratorium on drilling to give the town time to catch up with updating its own ordinances, long range plan, and studies to support changes to Lansing law.  But Lansing Town Attorney Guy Krogh warns that Dryden's victory is only the first step in what may prove to be a long battle.

"The home rule power embedded in NY common law and the NYS Constitution are dispositive on this issue," Krogh says.  "But that, in the end, it will be the appellate courts and the NYS Legislature that will finally, or potentially, resolve this issue."

Dryden legislators amended their zoning ordinance last August to ban 'all activities related to the exploration for, and production or storage of, natural gas and petroleum'.  That led to a lawsuit in which the Denver based Anschutz Exploration Corporation challenged the ordinance on the grounds that it is superseded by the state's Oil, Gas, and Solution Mining Law (OGSML).

Rumsey ruled that OGSML does not expressly preempt local regulation of land use, and that  'There remains an absence from the OGSML of clear expression of legislative intent to preempt local zoning control over land use concerning oil and gas production.'  He noted that courts in Pennsylvania and Colorado both ruled that their states' 'statutes governing oil and gas production does not preempt the power of a local government to exercise its zoning power to regulate the districts where gas wells are a permitted use.'

The ruling distinguished between the OGSML's ability to supersede local law that regulate industries and local laws' ability to regulate land use.  Rumsey ruled the language of the state law is too vague to assert that it may supersede local land use ordinances.  Dryden's law is all about land use, prohibiting use of the land for exploration and extraction of natural gas and petroleum and production wastes that come from it, its storage, transfer, treatment, disposal, and support activities.

"Today's court decision is a big victory for every city, town and village that wants to preserve the quality of life and environment of their own communities," Tompkins County Legislator Nathan I. Shinagawa said Tuesday.  "If the gas industry tries to appeal this decision, communities in Tompkins county and beyond need to unite behind the Town of Dryden... even if this fight goes from the Appeals Court to the Supreme Court. This is a fight we need to win."

"I am thrilled with the just-released decision from Justice Rumsey in Anschutz v. Dryden," said State Assemblywoman Barbara Lifton. "I have long argued, in both my amicus brief filed in this case and with my home rule bills, that our long-held tradition of home rule in New York still applies to drilling. This is a victory for municipalities and land-owners across New York."

Lansing Supervisor Kathy Miller and Deputy Supervisor Robert Cree were out of town this week and unavailable for comment.

The ruling will be seen as a victory for municipalities across New York State that have also adopted bans and limits on hydrofracking.  It will be an added incentive for the Lansing Town Board to pass its moratorium before the NYS Department of Environmental Conservation (NYS DEC) starts allowing permitting, a decision that is imminent despite fierce opposition across the state.  The board could impose the moratorium at its March 21 meeting.

It is likely that Anschutz will appeal Rumsey's decision, so the outcome is far from final.  Even if Dryden wins that fight, Anschutz's Attorney Thomas West has already said the company is considering filing a 'takings' claim against Dryden.  The basis for such a filing would be that because the company has spent more than $5 million securing 22,200 acres worth of land leases in Dryden, the town should be liable for paying the company back since it has removed the company's ability to drill there.

About 41% of the land in Lansing is leased, owned by 7% of town residents who could potentially benefit from drilling in the town.  A survey of Lansing residents last November showed that 68% do not favor drilling.  916 residents responded to the survey.  85% said they favor stricter local laws, and 64% favor an all-out ban.

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