On Tuesday, the New York State Court of Appeals will hear arguments in a case that poses a simple question: Can cities and towns in the Empire State fend off potentially devastating environmental and economic damage by banning hydraulic fracturing through their zoning code?
Our answer — as stated in an amicus brief filed on behalf of then-Manhattan Borough President Scott Stringer and Elected Officials to Protect New York, a nonpartisan network of over 800 current and former municipal officials from all of the state's 62 counties — is an emphatic yes.
For decades, New York law has acknowledged that municipalities are far better situated to determine what land use is appropriate for their territory. In 1970, the state Legislature passed a groundbreaking Environmental Protection Law which acknowledged the importance of "[l]ocal participation in planning activities which influence the ecological balance on the locality and therefore the state."
While the Department of Environmental Conservation has imposed a blanket ban on fracking in the watersheds of Syracuse and New York City to protect the health of nearly half the state's residents, many residents of upstate towns have rightly wondered, "If fracking isn't safe for city dwellers, by what logic is it safe for us?"
As it turns out, many towns aren't waiting for the state to finish its analysis. As evidenced by the more than 175 New York municipalities that have already enacted bans and moratoria on fracking within their borders — often in the face of costly lawsuits threatened by the oil and gas industry — concerns about the effects of fracking on public health and quality of life have united communities large and small, from Otsego to New York City.
Indeed, our collaboration and the coalition assembled by EOPNY stand for the proposition that when it comes to fracking and its effects on our way of life, upstate and downstate are in this together.
Our argument to the court seeks to protect the long-standing right of municipalities to make their own land-use, local control decisions by emphasizing the powerful justifications for local bans: significant scientific evidence linking fracking to water contamination by heavy metals, radium and methane; municipal and social ills due to increases in crime and stresses on social and emergency services; and economic costs including catastrophically expensive road damage and the specter of declines in property values.
In fact, a 2011 report from the state Department of Transportation found the cost of increased heavy traffic alone could result in the need for repairs and reconstruction ranging from $211 million to $378 million annually.
In the six months since the brief was filed, our position has only grown stronger as new studies have showcased the threat of water contamination and health and community impacts imposed by fracking. One example is the growing evidence linking fracking and its wastewater disposal to earthquakes, which can occur miles away from the wells themselves.
The case being argued Tuesday comes from the communities of Dryden and Middlefield (population 1,869 and 1,962, respectively). The towns argue that banning fracking through the zoning code comports with their rights to make land use decisions appropriate to their unique neighborhoods. In contrast, the gas companies challenging the towns have asserted that only the state can regulate oil and gas extraction, despite the fact that cities and towns across New York have long used zoning to facilitate the "adequate provision of transportation, water, sewerage, schools, parks and other public requirements" in concert with the character of the community.
Dryden, Middlefield and scores of other towns have rightly seen fit to protect their towns from the harms associated with fracking. These actions are firmly grounded in constitutionally granted Home Rule powers and the duty of all municipalities to protect their citizens' health, safety and welfare. We stand firmly for the right of any community to do the same.