ALBANY, N.Y. Feb 27 (Reuters) - Two cases decided last week upholding the right of local governments in New York to prohibit gas drilling within their borders could encourage opponents of the controversial drilling method known as fracking to pass new bans and defend them in court.
On Friday, Acting Supreme Court Justice Donald Cerio held that Middlefield, a town about 70 miles west of Albany, had the authority to ban gas drilling. The ruling came just three days after State Supreme Court Justice Phillip Rumsey dismissed Anschutz Exploration Corporation's bid to overturn a similar ban in the Ithaca suburb of Dryden, where the company owns leases on more than 220,000 acres of land.
Both judges held that the bans were natural extensions of local governments' authority to regulate their own land use.
Experts framed the decisions as a victory for opponents in the protracted debate over whether -- and where -- to allow fracking in New York. Fracking involves blasting millions of gallons of water, sand and chemicals into wells at high pressure in order to release the natural gas trapped inside rock formations.
"For the last year or so, the gas industry has been threatening (towns),'you're going to lose in court, so don't even waste your money,'" said David Clinton, a partner at Gozigian, Washburn & Clinton and the town attorney in Middlefield. "So (the rulings) certainly embolden other towns."
Dozens of municipalities in the state -- including Buffalo, Syracuse, Binghamton and at least six counties -- have passed bans or restrictions on drilling, and several experts said that last week's rulings could convince the towns and cities to vigorously defend these laws in court. The decisions also could prompt other municipalities to enact prohibitions on drilling.
The legislature is currently considering proposals that would change state law to explicitly allow municipal bans.
Last week's decisions "will help to empower those towns to continue to move forward and could provide similar impetus to the legislature to act," said Katherine Nadeau, program director at Environmental Advocates of New York.
NEW BANS A 'MISTAKE'
Both sides cautioned that the rulings were not the final word on the bans. Anschutz and Jennfer Huntington, the dairy famer and the plaintiff in the Middlefield case, are expected to appeal, and trial court judges could rule differently in future cases.
"This case is not over," said Scott Kurkoski, a partner at Levene Gouldin & Thompson in Binghamton and the lawyer for Huntington, who sold leases to drill oil on nearly 400 acres in Middlefield. "For a town to take this as authorization to pass bans would potentially be a mistake."
Environmental groups acknowledged the likelihood of appeals, but said the rulings would be tough to overturn.
"The common sense nature of the decisions should give towns confidence about moving forward," said Kate Sinding, a senior attorney at the Natural Resources Defense Council.
In their respective cases, Anschutz and Huntington argued that state oil and gas law was designed to maximize the extraction of resources and preempt local laws regulating the industry.
The towns recognized that the law prevented municipalities from "regulating" the industry, but argued it did not bar them from imposing an outright ban on drilling.
Both judges ruled in favor of the towns, holding that the bans were not regulations. Examples of fracking regulations include rules governing the disposal of drilling waste and the mandatory distance between gas wells.
"The state maintains control over the 'how' of (drilling) procedures while the municipalities maintain control over the 'where,'" Cerio wrote in the Middlefield decision.
'MORE LITIGATION'
An appeal of the Dryden and Middlefield decisions could just be the beginning. Kurkoski and Sinding said the plaintiffs could sue the towns for violations of the Takings Clause of the state and federal constitution, which prohibits government from taking private property without compensation.
"We expect to see a lot more litigation around this issue" of local control, Sinding said. "But this is all novel, and we don't know where it's going to go," he added.
The state Department of Environmental Conservation currently is sorting through 66,700 public comments it has received since releasing a 1,500-page report in July and a set of draft regulations for fracking in September. Emily DeSantis, a spokeswoman for the agency, said it expects to release a revised report later this year for the consideration of Gov. Andrew Cuomo.
DeSantis on Friday said the DEC is watching the Dryden and Middlefield cases, but last week's rulings "do not affect DEC's ongoing review" of fracking.
(Reporting by Dan Wiessner)
Follow us on Twitter: @ReutersLegal