In arguably one of the most important cases surrounding the oil and gas industry at the moment, the Supreme Court, Court of Appeals in New York handed down a judgment on the 30th of June 2014, confirming that local communities have the power and authority to ban oil and gas drilling from their townships, including the practice known as hydraulic fracturing or fracking.
The suits involved the towns of Dryden and Middlefield against a Trustee of Norse Energy Corp and the Cooperstown Holstein Corporation respectively, after the towns voted through changes in their zoning laws to prohibit oil and gas activities in their municipal boundaries. Dryden is an agricultural town located in Tompkins County NY, and Middlefield, also an agricultural town, is located in Otsego County. Both towns changed their zoning laws to protect not just rural, small town character of their community, but the health, safety and welfare of its environment and its residents.
After hearing robust oral arguments from both sides of the fence on the 3rd June last month, the Court of Appeal decided with a 5-2 majority that the statewide Oil, Gas and Solution Mining Laws did not supersede the home rule authority vested in municipalities to regulate land use. Therefore local zoning laws can lawfully prohibit exploration, development, extraction, and storage of oil and gas, essentially blocking the oil and gas industry from encroaching within their municipal boundaries.
This is a truly historic win for local communities all over New York State who were once accustomed to these industry giants imposing their will and drilling with impunity. I have no doubt many local communities waited with bated breath to see which way the ruling would fall before passing similar zoning laws of their own. Now they can do so without fear of legal challenges being made to their authority. That being said, it is entirely open to Congress to draft the Oil, Gas and Solution Mining Laws to explicitly limit the authority local governments have over mining operations at a local level.
While environmentalists will view this as an anti-fracking win, the Court explicitly noted that it’s ruling was neither anti nor pro fracking. It was simply a determination of law surrounding oil and gas activities at the municipal level.
For those of you who have not heard of the term fracking, it is a particular form of gas drilling, the practice of which has increased dramatically in recent years due to the high extraction rates compared to traditional drilling methods. Traditionally, gas was extracted via a long vertical well, drilled into gas rich deposits such as shale. With fracking, not only is a well drilled vertically, but multiple tunnels are dug horizontally, like spokes radiating from the center of a wheel. Millions of gallons of water, toxic chemicals and sand are pumped into the vertical and horizontal wells at extremely high pressures with the intent of forcing cracks and fissures in the shale deposits to release the trapped natural gas.
While this method has allowed thousands more cubic feet of natural gas to be extracted from one well, the environmental and health risks have also dramatically increased. Here are just some of the reasons why:
- Shale deposits often sit underneath water tables, as does the Marcellus Shale Deposit in New York State. When fissures are created through the high pressure fracking process, these can reach up to the water table, thereby exposing drinking water to the natural gas and chemical laden fracking fluid. The water table then becomes contaminated, threatening the health of humans, plants and animals all relying on this source.
- The contamination of natural gas into water tables has resulted in toxic drinking water, and residents being able to literally, light their faucets on fire.
- The oil and gas industry is not required to report what chemicals they use in this extraction method, and in what quantities.
- The expelled fracking fluid is so toxic that it cannot be processed and treated by traditional means, and is therefore left in lined pools to prevent it seeping into and contaminating the ground. However, reports of improperly lined pools and those with cracks have resulted in incidents of ground contamination, also threatening ground water contamination.
- Not all natural gas released is captured by the well, so many cubic feet are released into the atmosphere, as well methane which a 20x more potent greenhouse gas than carbon dioxide. This air pollution impacts the health of residents and animals near well sites.
- The creation of fissures exacerbate the instability of fault lines in earthquake prone zones.
- The millions, sometimes billions of gallons of water used in the extraction process threatens the livelihood of those in drought stricken areas.
To learn more about fracking, check out the Earthjustice website: www.earthjustice.org
Earthjustice was the environmental justice organization representing the township of Dryden in the Court of Appeal hearing. They are the litigation arm of the Sierra Club.
To read the judgment yourself, click here.