October 05, 2012

Press Release: Third Court Upholds Home Rule

Posted: 04 Oct 2012 12:56 PM PDT
October 4, 2012
For Immediate Release

David F. Slottje, Senior Attorney, Community Environmental Defense Council(607) 277-5935
Joseph Heath, Attorney,  (315) 475-2559 office; (314) 447-4851 cell
Third Court Upholds Home Rule to Ban Gas Drilling
BINGHAMTON, NY - A Broome County Supreme Court judge has upheld the rights of local communities to protect themselves from destructive gas drilling, but maintained that the City failed to properly enact its temporary aquifer protection law.  The Binghamton decision does not apply to other towns’ bans and moratoria that have followed  land use enactment procedures, such as referral to county planning departments, and that were enacted to study and respond to community impacts caused by gas drilling. Binghamton’s right to use its “home rule” to prohibit gas drilling was clearly affirmed, but the court ruled that the City had not gone about it properly.

Calling the decisions that upheld home rule for zoning-based fracking bans passed in Dryden and Middlefield “well reasoned, [and] well founded,” Judge Ferris Lebous clearly affirmed New York municipalities have the legal authority to pass local land use laws to prohibit gas drilling activities within their municipal borders, and that such laws do not conflict with state laws. This is the third time this year a New York State judge has decided in favor of local rights and home rule.

Despite supporting home rule, the Binghamton court struck down the Binghamton law on enactment technicalities, including that the City did not call its law a moratorium and had not made any plans to study or mitigate gas drilling impacts during the two year life of the temporary aquifer law.  The City plans to make a decision about whether or not to appeal the decision in the next few days.
The following is a statement from David F. Slottje, Senior Attorney with the Community Environmental Defense Council, who represented the City of Binghamton in the case.

“We are heartened to see, for the third time, the courts are siding with communities wishing to defend themselves from destructive gas drilling. In this instance, the judge did not consider the residents of Binghamton in immediate danger and that the city did not plan to undertake any other protective steps during the two year term. We disagree. The state could begin issuing permits at any time, allowing oil and gas companies to begin injecting toxic chemicals into the ground near drinking water sources. The City of Binghamton and other towns in the region where fracking is being considered should be able to prepare themselves before it’s too late.”
Community Environmental Defense Council, Inc. (CEDC) is a pro bono public interest law firm based in Ithaca, NY. CEDC develops innovative legal strategies to assist municipalities and citizen groups interested in protecting their community rights, municipal property, and community character from the negative impacts of industrial style resource extraction, particularly unconventional shale gas drilling. In the face of a state statute that prohibits enactment of local laws ‘relating to the regulation of the gas industry’ — which has been asserted by the natural gas industry to preempt local zoning and similar authority — CEDC developed and advanced the thesis that NY municipalities may utilize local land use “home rule” authority to enact protective laws. So far well over 100 cities, towns and villages across upstate NY have enacted or are in the process of enacting such protective laws. CEDC can be found at http://www.cedclaw.org

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