The first overturning of a local law seeking to prohibit fracking and related activities in a municipality took place on Tuesday in Binghamton.  The City of Binghamton’s local law has been overturned by state Supreme Court Justice Ferris D. Lebous.  The case involved a local law enacted by the City of Binghamton late last year, declaring a two-year prohibition on gas-drilling and related activities within the city’s borders, based on the city’s police powers and a perceived immanent danger to the sole source aquifer.  While the law would have had an effect similar to a land use moratorium, it was not enacted using the portion of state law that allows for municipalities to enact moratoria while studying the potential effects of possible land use law changes.

The Binghamton law was unique among the many no-fracking local laws and moratoria enacted across the state.  All of the other municipalities have invoked the power to exert home rule in the determination of allowable land uses within their borders, enacting either a moratorium on such activities for a limited time while the issue is studied, or a permanent prohibition on the activities as inconsistent with the desired community character and mix of land uses within the municipality.  The permanent prohibitions must rest upon a comprehensive plan (or, if no plan is in place, the pattern of previous land use law) in keeping with the exclusion of mining and extractive industries, or heavy industry in general.  Of the many such actions taken by municipalities in NYS, none but Binghamton has attempted to enact a halt to fracking activities based upon non-land-use police powers to protect the health and well-being of residents.

The judge found the City’s line of reasoning unconvincing, and determined that the action was, in fact, a land-use law moratorium.  As per the decision:

Petitioner’s request for a declaration that the statute is invalid because it is a moratorium that does not meet the legal requirements for a moratorium, is a proper question for a declaratory judgement action…. Whether or not Local Law 11-006 is a moratorium is the crux of this case.  It is clear that a municipality can enact laws pursuant to its police powers to protect the health, safety and welfare of its citizens….. The two-year :sunset” renders Respondents’ claims that the law is solely an exercise of police powers illusory.  This activity cannot be so detrimental that it must be banned, but only for two years, particularly when it is clear that the City is not engaging in any investigation, studies or other activity in the interim in order to determine if there is a way to alleviate any harm to the people of the city from this future activity.

Local Law 11-006’s inclusion of a “sunset” provision leads to no other rational conclusion except that this law is a moratorium.

As proper procedures for the enactment of a moratorium were not followed, the law has been struck down.  However, the judge found legal validity to properly-enacted moratoria and prohibitions.  What the decision reflects is that the judge found the action to have taken the form it did as a matter of political expediency– to satisfy some members of the community without alienating others– and the court took issue with the way in which the two-year hiatus on fracking-related activity was instituted.

Were the City to go back and enact a proper moratorium, showing how such an action was warranted and necessary, and seeking comment from the County Planning Department, its own Planning Board, and the neighboring municipalities, a two-year moratorium might, in fact, be upheld.  It is undetermined whether the City will pursue an appeal, or will re-craft the law as a moratorium. The Binghamton Press and Sun-Bulletin quotes a city spokesman as follows:

City spokesman Andrew Block declined on Tuesday to discuss whether the city is planning to appeal the legal decision.“The city looks forward to reviewing today’s decision and continuing to do everything we can to ensure our community’s health, safety and prosperity,” he said.

It should be noted that land use law to exclude mining activities or heavy industry is much easier to enact in some places than others, and not just because the controversy is less heated.  In small rural or residential communities, comprehensive plans (upon which foundation land use laws must sit) typically prioritize residential, agricultural and commercial uses, and may already explicitly limit industrial activities as inconsistent with desired community character. In a gritty, industrial city like Binghamton, heavy industrial uses have typically been welcomed, albeit in zones that are set aside for these uses. Counter-intuitively, the urban areas in which it is clear that industrialized gas drilling would pose the most serious air pollution hazards to large numbers of people may have the most difficulty crafting local land use laws to protect them.

On the broader issues at stake here, however, Broome County Supreme Court added to previous Supreme Court decisions on the matter, making it increasingly unlikely that Home Rule provisions in townships and cities across the state are in any danger of being overturned.  From a press release from David Slotje of Community Environmental Legal Council:

Today, Broome County Supreme Court explicitly adopted the “well reasoned, [and] well founded” decisions in the Dryden and Middlefield cases as its own. Thus the only three NY state judicial decisions specifically considering the matter (Dryden, Middlefield, and now Binghamton) have unequivocally held

(i) New York municipalities wishing to do so have the legal authority to pass local land use laws of general applicability to prohibit gas drilling activities within their municipal borders,

(ii) such local laws are NOT ‘regulations’ within the meaning of ECL 23-­‐0303(2), and

(iii) accordingly such local laws are NOT preempted by or otherwise ‘illegal’ under ECL23-­‐0303(2).

While this decision does overturn a local law, the bulk of the decision argues persuasively that all the other bans and moratoria being enacted across the state are based upon sound legal reasoning.  The moral of this story may be that political conditions in the purported Marcellus Shale “sweet spot” near Binghamton make it difficult to garner support for the kinds of moratoria and prohibitions that have proved successful elsewhere in NY.

Advertisements