Judge upholds Dryden gas drilling ban

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February 22, 2012

BY JOE MAHONEY Staff Writer The Daily Star Wed Feb 22, 2012, 02:30 AM EST

COOPERSTOWN -- Advocates for home rule in setting energy policy won the first round of a major battle with the natural gas industry Tuesday when state Supreme Court Judge Phillip Rumsey upheld the town of Dryden's law that zones out drilling operations.

The challenge to the local law in the Tompkins County community of Dryden is one of two major court battles that pit hydrofracking advocates against supporters of local governments' ability to determine whether drilling and other forms of heavy industry can be kept out.

The other case involves the Otsego County town of Middlefield, whose local zoning law is being challenged by Jennifer Huntington, operator of Cooperstown Holstein Inc., a company that has leased tracts of land to a gas driller. Huntington sued the town after its zoning law was amended last June to keep out all heavy industry.

One of the attorneys for Cooperstown Holstein, Thomas West of Albany, also represents Anschutz Exploration Corp., the energy company owned by billionaire Philip Anschutz that is seeking to upend the Dryden law.

West said Anschutz has not yet decided whether to appeal Rumsey's ruling. The company has 30 days to decide whether to lodge an appeal, West said.

Anschutz has said it has invested more than $5 million on its plan to extract Marcellus Shale natural gas on more than 20,000 acres it has under lease in the Dryden area.

In similar lawsuits, both Cooperstown Holstein and Anschutz contended state environmental law allows only the state Department of Environmental Conservation to regulate gas drilling and that local bans amount to an overstepping of authority.

"We're obviously disappointed with this ruling," West said. "We're confident we will get a thorough review in the Appellate Division and optimistic we will prevail in the end."

He said state Court of Claims Judge Donald Cerio, who is overseeing the Middlefield case, may or may not be guided by Rumsey's ruling. It is not known when Cerio will issue a ruling, West added.

Opponents of hydrofracking, who have created myriad grassroots groups throughout the state to wage their battle against the gas industry, rejoiced when they learned of the Dryden ruling.

"This is an important vindication of local democracy -- with national ramifications -- at a time when it is being trampled in our country by powerful interests like the gas and oil industry," said Adrian Kuzminski, founder of the local environmental activist group Sustainable Otsego.

Brewery Ommegang, which is located in Middlefield and is one of northern Otsego County's largest employers, joined the village of Cooperstown and several environmental groups in filing friend-of-the-court briefs to support the Middlefield ban on gas drilling.

One attorney who worked on that brief, Deborah Goldberg of Earth Justice, praised the ruling in a statement.

"The people of Dryden stood up to defend their way of life against the oil and gas industry," she said, "and against stiff odds, they won."

At the heart of both the Dryden and Middlefield case is language in the state mining law, enacted in 1981, that drilling advocates said trumps any local legislation aimed at controlling gas extraction.

That law states: "The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law."

State Sen. James Seward, R-Milford, has authored home-rule legislation that would empower local communities with the right to ban gas drilling. Landowner groups that support drilling have been critical of Seward's legislation, while fracking opponents have championed it. A similar home-rule bill has already cleared the state Assembly.

Last month, at a meeting of the Otsego County Board of Representatives, Richard Downey of the pro-drilling Unatego Landowners Association argued that enacting home rule would amount to erecting a sign stating, "New York Is Not Open for Business."

However, most county lawmakers were unpersuaded, as the board passed a resolution endorsing home rule.