Fracking in today's (8-21-11) Syracuse Post-Standard

Central New York municipalities take steps to control hydrofracking

The city of Syracuse may soon join more than 20 local governments in Upstate New York that have banned or limited the controversial gas-drilling technique known as hydrofracking. 

But whether bans like the one proposed in Syracuse, and already enacted from the town of Ithaca to the city of Oneonta, will hold up in court remains to be seen. Activists, lawyers and even the state’s top environmental regulator say they expect the courts to ultimately decide the issue. 

Municipal officials and their attorneys say the bans are a proper and legal extension of a town’s right to enforce zoning, just as a town can prevent a factory from being built in the middle of a neighborhood. Opponents say the municipalities are usurping the state’s authority to control a public natural resource and are taking away the rights of property owners...

Read the rest.

While the reporter generally did a good job, DSEC takes issue with a few of the points in the article:

  • Tompkins County did not enact the road ordinance; it got put on hold again.
  • The statute on mining reclamation is different than the one on oil and gas.  The mining reclamation statute does not have the complete preemption language the oil and gas one does.  Words have meaning after all, and the legislature is presumed to have done this deliberately and to know how to write a statute.  Any attempt to use the mining statute cases as precedent falls afoul of the different statutory wording.
  • The story buys the claim that drilling is "heavy industry." See our earlier post on that.
  • The story misses the key point on takings—that people are losing millions in property values and since some of them own only mineral rights, they are losing everything.  That's why the Udell case on zoning says that zoning cannot take a "substantial portion of the value of the property."  Lease rates already are more than the original value of the land as vacant land.