Almost one year ago to the day after Guilderland banned natural gas drilling within its borders, the Town Board joined a court brief in support of its legislative power to enact such a law.
The Guilderland Town Board on Tuesday, July 2, approved joining an amici curiae, or friends of the court, brief supporting the towns of Dryden and Middlefield in enacting local laws banning natural gas drilling within the towns. These bans utilize Municipal Home Rule and zoning laws. Corporations challenging these bans on what is commonly known as hydraulic fracturing have claimed home rule powers do not allow towns to control natural gas drilling as a land use.
Guilderland unanimously passed its ban on July 3, 2012, and it denies any person, firm or corporation from drilling a natural gas well within the town. The local law also banned the exploration, transfer, storage, treatment or disposal of natural gas.
“The significance of the case is broader, or can be broader, than just dealing with hydrofracking,” Town Supervisor Ken Runion said. “There is always a question whether the state has preempted localities from enacting certain legislation. The more clarification there is on those issues the better it is for municipalities moving forward.”
More than 50 municipalities statewide have already signed the court brief. Joining the brief will not cost the town any legal expenses, since the Town of Ulysses is paying those costs, or lead Guilderland to becoming a party to an appeal.
Ulysses Town Supervisor Elizabeth Thomas reached out to Guilderland because Norse Energy Corporation USA is seeking permission to appeal the case. The Court of Appeals has discretion on whether it will hear the case.
Thomas in her letter to the town said the brief will “reiterate the powerful statement to the Court of Appeals, the NYS Department of Environmental Conservation and the State Legislature about the importance of protecting municipal home rule and each municipality’s right to decide which land uses are appropriate for its residents.”
The brief doesn’t oppose or support natural gas drilling itself, but argues in favor of home rule as a mechanism to regulate land use.
Norse energy claims an Environmental Conversation Law denying local laws ordinances “relating to the regulation of the oil, gas and solution mining industries” denies a town from banning natural gas drilling.
The Supreme Court previously defined “regulation” as “an authoritative rule dealing with details or procedures.” A local law pertaining to zoning usage, the brief claims, doesn’t relate to such details or procedures.
Runion said the Town Board banned natural gas drilling within the town as a proactive measure as technology develops to allow for local exploration.
“Our environmental council had done some research and analysis and they had sent a memo to the Town Board requesting we consider a ban on hydrofracking,” Runion said. “The environmental council described some areas (for possible hydraulic fracturing), while it wouldn’t be the first place to look, but as technology improves it could be an area that is impacted, so rather than wait … we thought it would be better to be proactive.”
Only a small portion of the town sits on the Marcellus Shale, a rich natural gas deposit, but Runion said is technology advances other types of shale deposits could be found in the town. Runion said the town’s ban will protect the town’s water supply and wells.
In June 2012, the Albany County Legislature passed a two-year moratorium on hydraulic fracturing on county-owned land.