Friday, November 11, 2011

Dryden defends gas ban in State Supreme Court Anschutz Corp. says millions at stake

Reprinted from

ITHACA -- Facing a lawsuit from an out-of-state gas-drilling company, the Town of Dryden defended its reassertion of a prohibition against gas drilling within its borders Friday morning in State Supreme Court in Tompkins County.

In front of a full courtroom, the town argued that state law forbidding municipalities from regulating the gas industry does not trump its home rule law or land use authority.

"This (lawsuit) would have the effect of severely curtailing the zoning authority of towns in New York state," Dryden Town Attorney Mahlon Perkins said.

The town was sued by Denver-based Anschutz Exploration Corporation in September after passing an amendment to its zoning ordinance in August that clarified that the town's zoning prohibits extractive industries. The town passed the ordinance after urging from a majority of residents at public hearings. Residents also collected more than 1,500 signatures in favor of a ban.

Anschutz's complaint states that it has more than $5 million invested in thousands of acres of leased land in Dryden that it intends to drill on, action that was stymied by the ban.

The case will set an important precedent in the state, noted both parties, complicating drillers' efforts to locate well pads in certain towns if the court rules in favor of Dryden, or imperiling the gas-drilling bans of at least 22 other municipalities across the state if Anschutz prevails.

Anschutz's argument, laid out by attorney Tom West, rests largely on the state's 1981 Oil, Gas and Solution Mining Law, which states in part that the law will "supersede all local ordinances related to natural gas drilling" with only two exceptions: control of local roads and property taxes.

West said the state Legislature made it clear that local governments could not regulate the industry, and said that prohibition was a form of regulation.

"In this case, they said 'all local laws and ordinances.' To me that's an indication that this is a broad pre-emption," West said. "It was clear they were limiting towns' ability to regulate oil and gas in this state."

Dryden's attorney Perkins responded that the state has not given the Department of Environmental Conservation the authority to regulate land use; it has left it for towns to decide.

"This would render municipal home rule law useless," Perkins said. "The legislature must have intended for local municipalities to have land use authority. There is no mention of the intention to pre-empt local zoning."

West also said the ban would create conflict with other existing laws, namely the DEC's permitting process for drilling sites, as the town's zoning ordinance states that permits for drilling would be declared invalid within the town.

"If the Town of Dryden can ban this, any town can, and there will be no drilling in the state," West said "This will decide the energy policy of the state. It's clear we have a policy so we can recover indigenous resources."

After each side had laid out its case, Supreme Court Judge Hon. Phillip R. Rumsey thanked the parties for their arguments, saying they had "made my job hard for me." He chose to reserve decision, and it was unknown when he would make a decision on the case.

The nonprofit environmental law firm Earthjustice was also present in court, as it had filed a friend-of-the-court brief, and attorney Alan Knauf said in his remarks that Dryden's ordinance regulates property use, not the oil and gas industry.

"The DEC doesn't even have jurisdiction over land use," he said. "The state's concern is to regulate, not to override local land use."

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