This week, in a tremendous victory for local governments in NY, an intermediate appellate court affirmed two lower court decisions that held that municipalities have the right to exercise their traditional home rule powers to ban fracking within their borders.
The decisions make clear that language in the state oil and gas act that prohibits towns from passing local laws “relating to the regulation of” the oil and gas industry relates solely to the operational aspects of production. It does not limit towns’ ability to pass laws establishing where – if anywhere – such production is permitted. In other words, towns retain their traditional right to decide what types of land use are consistent with their vision of the kind of place they want to be, and to keep polluting uses – like gas drilling – out.
As my colleague, Dan Raichel, blogged, the decisions are particularly powerful because of two additional specific findings by the court. First, the court solidly rejected industry’s argument that the state’s oil and gas law requires the state to promote gas development at all costs. The court said:
“There is nothing in the statute or its legislative history suggesting, as petitioner does, that it is the policy of this state to ‘maximize recovery’ of oil and gas resources at the expense of municipal land use decision making.”
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Second, by graphically describing the kinds of unavoidable negative impacts that are inherent in this heavy industrial activity – including noise and air pollution – the court highlighted why this is, ultimately, a question of legitimate land use planning.
Helping towns pass and defend laws that protect against these kinds of risks – as well as additional impacts from heavy truck traffic, including road damage and accidents, increased demands on community services, including health care and emergency responders, and visual blighting – is why NRDC created the Community Fracking Defense Project. In these two cases, we represented a coalition of environmental groups on “friend of the court” briefs, while our friends at Earthjustice represented one of the two towns.
While industry has indicated its intent to appeal, yesterday’s decisions strike a critically important blow for towns’ right to self-determination in the face of the audacious efforts of the oil and gas industry to trample on traditional home rule. Though each state’s law differs, the NY court’s strong opinions may provide inspiration for communities across the country, including CO and NM, that are likewise fighting to protect themselves and their way of life.
Now that the appellate court has armed communities with the right to protect themselves, Governor Cuomo should formally reaffirm his commitment to ensuring that all New Yorkers are protected against fracking’s risks by stating clearly that no final decisions will be made until crucial health studies are completed.