Local officials in Fulton and Montgomery counties are closely watching a case in New York state's highest court that could overturn six local bans on shale gas development using hydraulic fracturing.
New York state's seven-member Court of Appeals is considering two cases simultaneously, in which a midlevel appellate court unanimously concluded last year that state oil and gas law doesn't trump the authority of local governments to control land use. The final decision is expected to either uphold or eliminate the ability of local governments to ban hydraulic fracturing, the controversial process known as fracking, which uses chemical-laced water injected at high pressures into natural gas wells to free deep rock deposits of natural gas. About 170 municipalities in New York state have passed local moratoriums on fracking, most of them outside of the region where shale gas is most abundant: New York's piece of the Marcellus Shale formation along the Pennsylvania border.
Six local municipalities have banned fracking: Dolgeville, Minden, Oppenheim, Palatine, the town of St. Johnsville and the village of St. Johnsville. Copies of the local moratoriums, along with a complete list of the municipalities that have banned fracking in New York state, are available at the website, www.foodandwaterwatch.org.
About 40 other New York towns have passed resolutions supporting gas development.
Proponents of fracking point out the method has helped boost U.S. oil and gas production to its highest level in more than a quarter-century, with thousands of wells in more than 30 states, but environmentalists have expressed concern about the affect fracking may have on ground water. The 2011 Academy Award-nominated documentary "Gasland" showed how some individuals living near hydraulic fracturing wells in Milanville, Pa., had the ability to light their tap water on fire.
Minden Supervisor Cheryl Reese said she hopes the court upholds the authority of local governments to ban fracking, but she also hopes the issue never affects Minden. She said the Marcellus Shale formation doesn't go into much of Montgomery County, but she admits there could someday be interest in the deeper Utica shale formation, which does.
The following local municipalities have enacted a moratorium on hydraulic fracturing:
The town of St. Johnsville
The village of St. Johnsville
Other municipalities in the Capital Region that have enacted a moratorium on fracking include:
The town of Schoharie
"I think the towns should be able to have that right to decide," she said. "I don't know what the depth of the impact would be for the town of Minden, but as an elected official, I need to be cognizant of the environmental impact of how this would affect us, as well as how it would affect our infrastructure. Unless the court rules otherwise, our moratorium is staying in place."
According to a map on the New York state DEC website, the Marcellus Shale formation runs through Schoharie and Otsego counties and touches the southeastern border of Montgomery County. The deeper Utica Shale formation, however, runs under most of the western part of New York state and includes outcrops in Fulton County and the western part of Montgomery County in the towns of Minden, Palatine and St. Johnsville.
The town of St. Johnsville was one of the first municipalities in New York state to ban fracking, which it did in 2012. St. Johnsville Supervisor Wayne Handy, who owns a welding business in the town, said a lot of his farmer customers have told him that they've been approached by parties potentially interested in natural gas drilling on their lands.
"As far as anybody actually being paid though, or signing an actual lease, I haven't heard of that in this area," he said. "I don't have a personal position on this; it's going to be up to the majority of the people in the town as to whether we keep up our one-year moratoriums. We have a few vocal people who are against [fracking] and a lot of landowners who are for it."
The Court of Appeals heard oral arguments on the fracking case Tuesday. The natural gas industry argued that allowing local bans like those in Minden and St. Johnsville creates a patchwork of regulation that will prevent effective extraction of gas resources.
"It has a very chilling effect because it's very hard for operators to justify spending hundreds of millions of dollars to come in and not have regulatory certainty," lawyer Tom West, representing the gas industry, argued in court.
St. Johnsville Village Trustee Margaret DiGiacomo said she hopes the court upholds the right to local bans.
"Our water supply is up in Oppenheim and I've just heard so many things about this hydrofracking. I've heard it's causing earthquakes, and once your water is ruined it's done; it would take years to get it straightened out," she said.
The earthquake issue DiGiacomo referenced is a relatively new wrinkle in the controversy over fracking. In April, Ohio State University discovered a probable link between hydraulic fracturing and five small tremors in eastern Ohio, a first in the Northeast. On Wednesday the state of Ohio announced it's leading a group of drilling states working with seismology experts from energy companies, government agencies and universities across the U.S. on how best to detect and regulate human-induced earthquakes.
The cases being argued before the Court of Appeals involve bans in the small towns of Dryden and Middlefield in rural central New York. The Dryden ban is being challenged by a trustee for Norse Energy, an Oslo, Norway-based company that went bankrupt after amassing thousands of leases on New York land it was never able to develop. The Middlefield ban is being challenged by Cooperstown Holstein, a dairy farm that had leased land for drilling.
In oral arguments Tuesday, the judges questioned both sides aggressively, asking lawyers supporting the bans what was unclear about the 1981 state law that says the state has sole authority to regulate oil and gas development. Earthjustice attorney Deborah Goldberg said if legislators had intended that law to supersede local zoning laws, they would have explicitly said so.
When Scott Kurkoski, representing Cooperstown Holstein, said the state law was intended to put energy development above "not-in-my-backyard" interests, Chief Judge Jonathan Lippman said he understands that.
But he added, "There's a flip side to that argument, which is, don't bulldoze over the voice of the people in individual municipalities who want to be heard about how they live their lives."
Even if the bans are overturned, the industry and landowners eager to profit from gas drilling still face a statewide moratorium in effect since July 2008, when the Department of Environmental Conservation launched an environmental impact review of shale gas development.
Gov. Andrew Cuomo has said he won't decide whether to lift the ban until a health impact review launched in 2012 is completed. There's no timetable for completion of that review.
The Court of Appeals is expected to rule on the case before July 4.
The Associated Press contributed to this report.