New York Municipalities Can Ban Fracking, New York High Court Rules

New York Municipalities Can Ban Fracking, New York High Court Rules
July 16, 2014

New York’s highest court ruled municipalities can use zoning laws to ban hydraulic fracturing, adding to the frustration energy producers are experiencing in the state.

The New York Court of Appeals voted 5-2 to allow municipalities to ban fracking, affirming more than 170 municipalities in the state that have enacted bans or moratoria against fracking. New York is the second state in the Northeast, along with Pennsylvania, that has given local governments authority to ban fracking.

Hydraulic fracturing is the practice of extracting natural gas or oil from deep-underground rock formations by injecting a mixture of water and sand, along with trace chemicals, at high pressure. The high-pressure mixture creates small cracks in the rock formations, allowing trapped oil and natural gas to escape the rock formations and be brought to the surface. The practice has powered economic revival in states such as North Dakota, Pennsylvania, and Ohio.

Shifting Political Landscapes
“There are real losses here, and it’s a real tragedy for thousands of farmers and people in rural communities that would have realized the economic benefits that oil and gas development can deliver,” New York State Petroleum Council Executive Director Karen Moreau told Environment & Climate News in an emailed statement.

“Municipal boards change hands every two years, and a constantly shifting landscape of regulatory uncertainty virtually guarantees that major long-term investments in the state’s economy cannot occur,” Moreau explained.

Local Control Fallacy
“I’m all for more local control, but I think that the NYSSC, simply didn’t go far enough. Why move from state level control to some arbitrary ‘local’ community?  Why not to the ultimate in ‘local control,’ which is the actual property owner?” asked energy economist Tom Tanton, President of T2 & Associates. 

“The idea that an arbitrary and elitist group of locals are any better suited to deciding what I should do with my property than a larger set, the state, defies logic,” Tanton observed.

Statewide Moratorium
New York currently has a “temporary” statewide moratorium on fracking, imposed by former Gov. David Paterson. Various municipalities have voted to ban fracking in case Gov. Andrew Cuomo (D) lifts the moratorium. Cuomo claims his administration is studying the issue, though he refuses to give a firm timeline on when state environmental officials will make a final decision on fracking. 

“Hydraulic fracturing bans, be they local or statewide, reflect anti-energy extremism rather than environmental stewardship,” said Jay Lehr, science director for The Heartland Institute, which publishes Environment & Climate News.

Water Concerns Unwarranted
Lehr, who received the nation’s first Ph.D. in groundwater hydrology, explained the lack of scientific support for environmental activist objections to hydraulic fracturing.

“Environmental extremists claim hydraulic fracturing threatens groundwater. However, hydraulic fracturing occurs hundreds of feet—and often more than a thousand feet—beneath the surface. Multiple layers of impermeable rock have kept the oil and natural gas trapped far beneath the surface and continue to do so after hydraulic fracturing enables their extraction,” Lehr explained.

“Federal, state, and local environmental officials have confirmed this common-sense reality, testing thousands of wells and groundwater sites near hydraulic fracturing sites. They have never found a single instance of the hydraulic fracturing process causing groundwater contamination,” Lehr explained.

Hypocritical Championing of Local Rule
Lehr also addressed assertions that local governments should have the authority to ban activities such as hydraulic fracturing.

“Environmental extremists often argue that proponents of limited government and federalism should welcome local governments deciding on hydraulic fracturing moratoria,” Lehr observed. “Rather than promoting and abiding by local government decisions, however, environmental extremists first try to get a blanket national ban on hydraulic fracturing through the U.S. Environmental Protection Agency, then try to get statewide bans in the 50 states, and then go to the local level as the banning entities of last resort. If they were to choose one proper entity and abide by it, that would be one thing. However, environmental extremists make disingenuous appeals to local rule and federalism only when it suits their freedom-restricting goals.”

Alyssa Carducci (ad.carducci@gmail.com) writes from Tampa, Florida.