Starkey Citizens for a Clean & Healthy Environment
Marcellus Watch: Judge's Ruling Protects Corning Aquifer

While the craven New York State Legislature has been AWOL on vital gas drilling issues for years, state court judges, fortunately, have been quietly doing their job.

Last week a state Supreme Court judge in Rochester smacked down efforts by a subsidiary of Royal Dutch Shell to purchase fresh water to frack its Pennsylvania gas wells from the financially down-and-out Village of Painted Post.

At the behest of the thirsty energy giant, Painted Post had attempted to “short-circuit” New York State’s environmental review process, Supreme Court Justice Kenneth R. Fisher wrote March 25.

The village draws its water from the Corning aquifer, a relatively shallow, rain-dependent source that also supports several other communities. It has been selling water to Shell subsidiary Swepi LP under a contract that could provide it a reported $2.6 million a year for supplying up to 1 million gallons of water a day.

Fisher granted an injunction to halt the sale and rail shipment of the water to Wellsboro, Pa., about 40 miles south.

Painted Post had tried to duck out of an environmental review of the shady cross-border deal by arguing that the water from the aquifer is “surplus property.”

Fisher poured cold water on that idea, writing: “A large volume daily withdrawal of a resource vital to the well being of our state is not a mere surplus sale of village property akin to selling a bus or a fire engine no longer needed by the village.”

Now Painted Post must comply with the State Environmental Quality Review Act before its sells any more water to Pennsylvania frackers. That’s just common sense, and it’s the law.

This is neither the first nor the most far-reaching case in which state courts have blocked efforts by the oil and gas industry to Bigfoot its way into New York after stepping over the law.

Earlier last month, a judge in Livingston County rejected an industry challenge to the Town of Avon’s moratorium on gas drilling. That ruling dovetailed with previous state court rulings upholding drilling bans in Dryden and Middlefield.

In each case, industry lawyers claimed that a 1981 state law grants the state Department of Environmental Conservation unchallenged power to site gas wells throughout the state. That flimsy argument ignores the fact that local governments have zoning powers that are guaranteed under the state constitution.

The bottom line in the Avon, Dryden and Middlefield cases: the courts say DEC can regulate the “how” of gas drilling, but localities still get to say “where” it is allowed or banned. That’s not enough for the gas industry. It still insists that constitutionally protected zoning rights were somehow quietly expunged, even though the DEC itself disagrees.
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