Dryden, N.Y. — Judge Victoria Graffeo’s ruling Monday upholding the town of Dryden’s fracking ban has local environmental activists celebrating.
A rally is planned for outside the Tompkins County courthouse today. Bloomberg Businessweek reported that fracking opponents across the state are emboldened. Dryden officials are praising the ruling.
What’s perhaps surprising, then, is that Graffeo’s decision was explicitly made without regard for the relative safety or dangers of the controversial drilling practice that has sparked such fierce opposition.
Here’s a crucial piece of the ruling’s conclusion (red underscores are mine):
Instead, the case came down to the more prosaic issues of zoning — what towns can legally seek to regulate, and what lies within their authority under zoning codes.
The court, ignoring the more frequently debated problems about fracking’s impact on water supplies and carbon emissions, instead focused on the legal issue at hand: Whether or not the state’s Oil, Gas and Solution Mining Law (OGSML) took precedence over local municipalities’ right to regulate land use.
The gas company’s case
According to the ruling, the Norse Energy Company had argued that a portion of the state’s Environmental Conservation Law showed that the state has authority over municipalities in the regulation of energy production.
Under that reading, local municipalities have no right to ban fracking. (Again here, and throughout the piece, underscores are mine:)
Similarly, in writing a dissent, Judge Eugene Pigott Jr. said that power to control energy production was vested in the state.
Dryden’s attempt to regulate these industries, he said, represented an overreach of municipal authority.
Why the majority rejected that argument
Judge Graffeo, writing for the majority in the 5-2 Court of Appeals decision, disagreed.
She in part argued that the OGSML was clearly not written to police local municipalities, but instead to make sure the state could prevent wasteful gas practices.
Graffeo also noted that the portion of the law highlighted by the gas companies was added before the debate over fracking. It’s therefore impossible to say that the clause showed a clear desire to prevent local municipalities from regulating fracking, she said.
Graffeo writes:
Moreover, and perhaps most crucially, Judge Graffeo found that fracking bans were indeed relevant to land use, accepting Dryden’s argument about the substantial impact of fracking on local economies and municipalities.
