Can towns ban fracking? This one case could decide them all.

Posted in: Fracking, The Problem
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Article courtesy by Evan Dawson | February 5th 2013 | 13wham

A very important question is at the center of a court case that commenced this morning in Livingston County Court: Do individual towns have the right to ban natural gas fracking? An energy company is suing the town of Avon, hoping to set a precedent that would block towns from making their own decisions on fracking.

Dozens of towns are considering or have already enacted bans — more than half the towns in Livingston County passed one-year moratoriums on fracking, for example — and this is the one case that could decide them all.

We asked Michael Joy, attorney for Lenape Resources, why towns should’t have the right to ban fracking in the same way that towns can vote to ban, say, alcohol. Joy said it wasn’t a fair analogy.

“Not everybody is opposed to or supports natural gas development,” Joy said, “and you have the power as a property owner not to sign an oil-and-gas lease. What the oppositionists want to do is to go beyond that. They say, ‘We don’t only want to control what we do with our land; we want to control what you do with your land.'”

But to Joy’s point, a town that bans alcohol is not a town where no one chooses to drink any alcohol. That doesn’t stop the democratically elected town leaders from setting such a ban, nor does it stop the citizens from voting in new leaders if they disagree with such a move. Joy argued that an alcohol ban wouldn’t destroy the alcohol industry, but fracking bans could destroy the energy industry in New York State.

“There is absolutely the potential to see the death of — these kinds of actions could drastically impact the industry, and local employment,” Joy said.

The attorney for the town of Avon, who declined an interview after the hearing, disagreed with Lenape’s position. In court, Avon’s attorney argued that the State Court of Appeals has repeatedly moved to protect the rights of towns to set their own standards for what is an appropriate use of the land within its borders. The attorney stressed, “This case is not about fracking. It’s about town rights. Lenape is asking the court to eliminate the rights of towns to decide what use of land is appropriate.”

The attorney continued the point by saying that individual towns have to decide whether tourism and recreational activities can co-exist with natural gas extraction. He told the judge that Lenape’s position would take away the town’s ability to protect its resources.

Joy responded by telling the judge that much of the debate is being driven by “fear-mongering” and said, “Local municipalities should not be regulating the natural gas industry because they clearly do not understand what goes into the operation of it.”

Regarding the potential for bans to hurt the energy industry, Avon’s attorney scoffed: “This is not a referendum on whether the natural gas industry is going to survive in this state.”

Lenape Resources is located in Alexander, NY, just south of Batavia. The company has operated in Avon for several decades, but is awaiting a state ruling on fracking. The lawsuit seeks $50 million in damages, claiming the recent ban has injured the company.

Outside the courthouse, activists rallied to Avon’s side and said there were other rallies in Albany and elsewhere focused on the same subject: home rule.

“We’re basically coming out to support Avon and support the right of home rule, of local towns to set bans and moratoriums if that’s what the folks decide,” said Zora Gussow while she waved handmade signs.

This case is likely to become a model for other towns, and Lenape chose Avon for that very reason. “The fact that there are more than a hundred towns dealing with this issue across New York State makes this case that much more important,” Joy explained. “What the industry and communities and landowners need is clarity on this issue. This is an issue that is dividing communities across New York, and that’s unfortunate. That doesn’t help anyone. Resolution on this issue will.”

Judge Robert Wiggins did not set a timetable for moving forward, but attorneys on both sides hope to hear from the judge before the end of next week.

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