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Court decisions embolden towns? All sides predict appeal

By Fritz Mayer
February 28, 2012

NEW YORK STATE — With two Supreme Court judges ruling last week that municipalities have the right to ban gas drilling and fracking through zoning codes, activists who oppose drilling say now more towns and other municipalities will be emboldened to adopt similar bans.

Ramsay Adams, executive director of Catskill Mountainkeeper, said, “This will absolutely embolden towns to move in that direction. One of the scare tactics the gas industry has been using is to say ‘You’re opening up your town to the might and brute force of the industries’ lawyers.’ And the reality is it’s perfectly legal” to zone out drilling.

The first case ruled on last week concerned the Town of Dryden, which was sued by Colorado-based Anschutz Exploration Corporation, which had acquired gas leases in the town. Justice Philip Rumsey ruled that the state’s Environmental Conservation Law does not pre-empt a municipality’s right to zone out drilling.

Bruce Ferguson of Catskill Citizens for Safe Energy agreed with Adams’ assessment that the decision would influence the actions of other towns. He said, “The Town of Dryden had a flat-out prohibition specifically against fracking, and every phase of fracking, from storage of materials to be used in fracking to disposal of waste, and the judge upheld all of those prohibitions.”

The second decision concerned the Town of Middlefield, in which a landowner who had signed a lease sued the town after it adopted zoning that banned drilling. In that case, too, Judge Donald Cerio ruled that the town had the right to do so.

Thomas West, one of the lawyers who represented the plaintiffs in both cases, is widely quoted as saying that one or both cases will be appealed to the Appellate Court and to the Court of Appeals, if necessary, after that. West said that if the two rulings stand, it would have the likely effect of leading to very little drilling in the Marcellus Shale in New York, because drilling companies will be reluctant to invest huge sums of money without some guarantee that drilling will be allowed to move forward.

Tom Shepstone, a planning consultant and a spokesman for the pro-drilling organization Energy in Depth, expressed confidence regarding the Dryden decision that it would be overturned on appeal. In an article titled “Will the Dryden Turkey Fly?,” he responded to a message sent by an individual who was gloating over the Dryden decision handed down by Judge Rumsey.

False sense of confidence

I think the towns who take this course of action will be lucky if the plaintiff's take their case to the Appellate Court. If the towns lose there they will get off easy and that will be the end of it, if they win however the battle will only have just begun. Does anyone really believe energy companies will just 'write off' their substantial investments or landowners will simply give up and forget about their potential wealth? Energy companies as well as landowners will bring suit against towns and the officials involved for 'taking', not in class actions but individually, costing millions in legal fees to defend and billions if the outcome is in the mineral owners favor. Either way it will be costly. No matter what opinion any expert has on the validity of such suits, that won't stop them from proceeding and devastating town budgets.
Another likely scenario is action against 'environmental' groups who seek to block drilling plans. Even though it's not directly related to our situation, headlines like this one in today's news may be the first shot in a soon to be common sight.
"Shell sues environmental groups to score drilling rights"

Sounds a lot like "scare 'em if you can" tactics to me

So do you mean to imply that zoning is a form of "taking"? Or, are you only concerned as it applies to those who have their sights set on gas money? If a town prohibits an "industrial" use in a residential or "rural-residential" zone, is that a "taking"? You might as well abolish zoning because there will always be some use that denies your perception of a "right".
And, that talk about all the money the towns would have to spend to defend based on your presumptions... Have you stopped to think about what's wrong with this picture? Whether we've signed leases or not, whether we want drilling or not, neither you nor anyone who is expecting revenues has control over what the companies do with the end product and to whom it is sold. Is that who you want to turn your rights over to? So, to me, there's the real "taking" that people like you are unwilling to consider. If drilling ever happens here, the gas will be sold to the country that bids the highest and to the country where the political dynamics are most advantageous to the corporation and that would not necessarily be to the United States.

What me worry?

There's no 'scare tactics' about it. It is a very real situation and if the rulings stand, courts will be inundated with such actions and those towns will have to defend themselves.
The big difference in selling your minerals and banning mineral extraction is, one you get paid, the latter you get nothing. Selling is not taking. Zoning away the ability to recover your gas is taking without compensation. Also the big difference here is 'industrial use'. Once the construction/drilling operations are over all that 'industrial' goes away, all that's left is a silent well head and underground pipes, how is that 'industry'?
It was announced at the February meeting of the Coalition of Watershed Towns the Delaware County Board of Supervisors plans to vote on a resolution that seeks compensation for the value of the gas, estimated to exceed $81 billion in gross sales. According to Dean Frasier of the Delaware County Office of Watershed Affairs, the Board of Supervisors will be discussing a resolution that calls for New York City compensating it for the lost revenue should NYC succeed in having watershed lands off-limits to gas exploration. No one is taking the loss of their property lightly and there is no way they will just roll over and forget about it. Don't kid yourself, it will mean a very costly battle.

No, I can't say I'm worried about what the companies do with my gas once they've paid me for it, it then belongs to them. I'm not at all worried it will all be sold overseas, that is in fact a 'scare tactic' the anti-gas/oil crowd tries to promote. Will NG stay at the low price it is today? Probably not, but I can't believe there will be any shortage of it due to exports, sorry.

A matter of what you value most

You don't have to be sorry. I understand your position. But what we are finding is that some people place such a high value on things that others view differently and they are always willing to sell...for a price.. regardless of the end result. What it will finally come down to is who has more money and enough of it to impose their values on others. I am neither surprised nor impressed. It is what this country has become within our lifetimes anyway. A great "experiment" but failing nevertheless. The handwriting was on the wall a long time ago when our destiny was purported to be "manifest".


Pennsylvania and Gov. Corbett have stripped the right away from townships to strip the rights away from landowners including in some cases the right to strip. That ain't right! Right?