Starkey Citizens for a Clean & Healthy Environment
Marcellus Watch: Drillers Go for Broke in Appeal of Bans

By Peter Mantius Posted Sep. 4, 2013 @ 2:03 pm

In New York State, a municipality's established legal right to ban gas drilling within its borders stands as the final line of defense against an aggressive energy industry bent on setting its own rules.

Now that right is up for grabs.

The state's highest court, the Court of Appeals, agreed last week to hear industry challenges to drilling bans enacted in 2011 by the towns of Dryden and Middlefield. Those bans were passed under the towns' home rule authority to exercise land use law. Roughly 60 municipalities have passed similar bans and many more have passed drilling moratoriums.

The industry has repeatedly challenged those bans and lost -- at the trial court level and at the appellate level, where four judges ruled unanimously in May.

Now the energy boys want to go for broke with another appeal. Since the high court will invite amicus curiae briefs from interested parties, we can expect an array of deep pockets to submit novel, sophisticated new rationales for why the state's home rule principle needs to be dumped to serve gas drillers.

The stakes are enormous because the energy industry has already co-opted the state Department of Environmental Conservation and the state Senate. If the Court of Appeals caves on home rule, it will be transferring vast new powers to our energy lords.

Consider a few ways the drilling industry has already undermined the state's governance and environmental protection standards:

Property rights.

New York State allows drillers to conduct underground trespass for the purpose of theft. A 2005 state law drafted by a lobbyist for drillers and promoted by the DEC empowers an energy company to drill under the home of an unwilling property owner in order to take gas. Notably, that gas need not be from an underground pool that extends under multiple properties. It's just gas from shale underneath that particular landowner's home. The state-sanctioned action -- which may jeopardize the homeowner's mortgage and insurance contracts and is virtually certain to slash the property's value -- is called "compulsory integration." There's no way for an unwilling homeowner to opt out.


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