New York’s highest court rules in favor of local fracking bans

The ruling upheld the right of individual towns to keep out the frackers

Topics: fracking, anti-fracking, new york state, Love and Sex, , ,

In a smaller-scale — but still pretty epic — decision handed down Monday, New York’s top court ruled that towns can ban fracking and drilling for gas and oil within their borders.

The Court of Appeals in Albany upheld rulings allowing individual towns and cities to act using a principle known as home rule, under which they can vote to keep away industries that they decide pose a threat to common resources — in the case of fracking, that can mean air and water — even if state and federal laws say otherwise.

The 5-2 decision applies specifically to challenges to bans in the upstate towns of Dryden and Middlefield, but means bans passed in about 170 other New York communities are also immune to similar challenges.

The state is now waiting on New York Gov. Andrew Cuomo, who’s been delaying the hell out of making a decision about whether to lift the moratorium on fracking that’s been in place since July 2008. The governor said he first needs to see the results of a health impact review his office undertook in 2012. But now, even if he does decide to welcome frackers into the state, individual communities officially have a legal way to opt out — if enough do, the gas and oil industry could decide that New York is no longer worth its while.

Climate Progress flags this exceprt from the majority opinion, written by Associate Judge Victoria Graffeo, which emphasizes that the decision was about state versus local government, not the potential dangers of fracking:

These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits. These are major policy questions for the coordinate branches of government to resolve. The discrete issue before us, and the only one we resolve today, whether the State Legislature eliminated the home rule capacity of municipalities to pass zoning laws that exclude oil, gas and hydrofracking activities in order to preserve the existing character of their communities.

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For more context, Helen Slottje, a former corporate lawyer who, along with her husband, David, has been helping towns throughout the state pass such bans, explained the significance of this principle in a recent interview with Salon:

The reason why people thought they couldn’t do anything was that there’s this statute that says that towns cannot regulate the oil and gas industry. And so everyone took that to mean that basically the oil and gas industry could come into your town, and they didn’t have to abide by any laws you had in the town at all. Of course, if you think about it, you’re like, how can that be?  How does one industry get this tremendous exemption from everything?

“We applaud the court for once again affirming the right of New Yorkers to ban fracking and its toxic effects from their communities. As Chief Judge Lippman said, you don’t bulldoze over the voice of the people,” John Armstrong of Frack Action and New Yorkers Against Fracking said in a statement.

“But water and air contamination don’t stop at local boundaries, and Governor Cuomo must ban fracking statewide to protect our health and homes from the arrogant and inherently harmful fracking industry.”

Lindsay Abrams

Lindsay Abrams is a staff writer at Salon, reporting on all things sustainable. Follow her on Twitter @readingirl, email labrams@salon.com.

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