by Hal Smith
In one week, the natural gas industry decisively lost the first rounds in two separate court cases affirming the right of communities to use their zoning authority to exclude gas drilling from their towns.
Late in February, a New York State Supreme Court ruled in favor of Dryden, a suburb of Ithaca in Tompkins County, against Anschutz Exploration Corp., a Denver-based conglomerate that develops gas fields in six states, three of them in the Marcellus Shale fairway.
The court held that Dryden’s zoning law, which prohibits natural gas drilling, is not preempted by the state’s oil and gas law, which limits the rights of municipalities to regulate gas drilling.
Within a few days, the industry lost a similar case in which a dairy farmer in Middlefield, about 70 miles west of Albany, claimed the town’s ban on gas drilling contravened state law, which the farmer claimed was designed to create a uniform regulatory scheme for the oil and gas industry. The judge disagreed, and said there is nothing in the legislative history of the law to suggest lawmakers intended to prevent towns from
banning heavy industry.
Lawyers representing industry in both cases have said, prior to the rulings, that a verdict favoring home rule could drive drilling companies from the state.
Public interest attorney Helen Holden Slottje, who with her attorney husband David, have been advising towns on home rule laws, noted that after the Dryden decision industry and landowner coalitions “began questioning the qualifications of the Cortland County judge that decided the Dryden case and predicted that surely the Middlefield case would be decided ‘correctly’ and industry would prevail.”
But in the Middlefield decision the judge in that case rejected the industry’s arguments as strongly and emphatically as the judge in the Dryden case, she said.
Prior to the decisions, Slottje said, industry supporters became increasingly adamant that towns could not zone out drilling. Landowner coalition members went so far as to threaten local legislators with personal liability for enacting such a law that they insisted was so clearly illegal that the absolute legislative immunity that all state local legislators enjoy would not apply.
“Industry has, and surely will, continue to engage in bullying, intimidation and scare tactics,” Slotjje said. “But local elected officials across the state have stood strong and stood together, with the unflinching backing of so many of their residents in the face of these strong arm threats. We now have definitive answers from two separate courts that clearly support local community rights.”