CHENANGO COUNTY – With the June ruling from the New York State Court of Appeals to uphold local governments’ authority to control land use, pundits in the natural gas industry are uncertain of what the decision means for the future of natural gas in Chenango County.
The decision made by the Court of Appeals rules that local municipalities have the final say on whether or not to allow any method of drilling, including conventional drilling and the controversial process of hydraulic fracturing to extract natural gas in their towns.
While opponents of hydraulic fracturing have counted the court’s ruling a victory in the battle to ban the practice altogether, it’s not the end of what’s been a long fight, according to Steven Palmatier, an advisor on the natural gas industry for Chenango County.
“Ultimately, this decision is just going to lead to more lawsuits,” Palmatier said referencing the mineral rights of local landowners. Although the recent ruling of the Court of Appeals gives townships authority to allow or disallow gas drilling through the act of zoning, there’s still the debate of what landowners can and can’t do with their mineral estate, he said.
Palmatier added that while the court’s recent ruling doesn’t ban hydraulic fracturing, it is a hit to the industry. Even if a municipality allows drilling, exploration and production companies may see drilling as a risky investment due to the capability of future town boards opting for a ban in the future.
“Why would a company invest in this area if a new town board restricts (drilling) in a couple years?” said Palmatier. “The law can be changed at any point. I don’t know how a (company) can develop a field in Chenango County or any other part of New York State. There probably won’t be a big push to lease land in this area.”
“There are a lot of precursors to go through if a town wants to ban (hydraulic fracturing) altogether,” said Donna Jones, Director of Chenango County Planning and Development.
The process of banning hydraulic fracturing, she said, warrants a comprehensive plan adopted by the town board and zoning laws before a board can go any further. Currently, only seven of the 21 townships in the county have adopted a comprehensive plan. Only the towns of Greene and Oxford have zoning.
“It would take a couple years just for a town to reach a point where they can ban drilling,” Jones said. And when it comes to town boards adopting a moratorium to prevent future boards from allowing hydraulic fracturing, it may be a reach even with the court’s recent decision to uphold home rule. “The reason a moratorium is put in place is usually to investigate an issue,” she said. “Moratoriums are usually less than a year...town boards can’t adopt laws that restrict the decisions of future boards.”
The court’s decision on home rule also comes at the same time opponents of hydraulic fracturing are calling on the New York State Department of Environmental Conservation to overhaul its revised draft Supplemental Generic Environments Impact Statement (rdSGEIS) which addresses permit conditions required for gas drilling using high volume hydraulic fracturing in tight shale formations. According to the regional environmental advocacy group Toxics Targeting, the rdSGEIS uses 2009 data and is outdated.
Last week, opponents of hydraulic fracturing called on Gov. Andrew Cuomo to withdraw from the current rdSGEIS. Cuomo is also confronting a lawsuit filed in April in the State Supreme Court that says he used the States Environmental Quality Review Act to delay hydraulic fracturing permits for political purposes.
In the meantime, it’s feasible that the Environmental Protection Agency may release a risk assessment for hydraulic fracturing that will influence direction of the gas industry in Chenango County, Palmatier said.
“I don’t know what the powers in Albany will eventually do,” he said. “Towns are waiting for the DEC to make its final decisions because they know they can’t regulate the industry themselves.”
The recent ruling of the NYS Court of Appeals has been closely watched by drillers hoping to tap into the state’s portion of the Marcellus Shale formation.
A statewide moratorium on hydraulic fracturing has been in effect for nearly six years. Gov. Cuomo said permits will not be issued until a health impact review started in 2012 is complete.