A Broome County judge this week invalidated the City of Binghamton’s local law that prohibited any land, body of water, building or other structure within the city to be used for new natural gas drilling exploration, extraction, or support activities.
Binghamton’s ordinance, which was scheduled to expire on its own on December 31, 2013, was not a zoning law, but was rather adopted under the city’s police powers. The court found that the December 2013 expiration date made the local law a moratorium, or emergency stop-gap measure, and that it was thus required to demonstrate a dire need for the measure. Because the New York State Department of Environmental Conservation has yet to approve regulations that would permit natural gas drilling in the state, the court reasoned, Binghamton had not demonstrated that any dire emergency existed for which the moratorium was required.
Despite the invalidation of the Binghamton ordinance, the Community Environmental Defense Council, counsel for Binghamton, heralded the decision as largely upholding the power of local governments to enact land use laws restricting natural gas exploration, storage and extraction. Justice Ferris Lebous, the presiding judge in the matter, adopted as “well reasoned” and “well founded” the prior decisions in Anschutz Exploration Corp. v. Town of Dryden (Tompkins County) and Cooperstown Holstein Corp. v. Town of Middlefield (Otsego County), which ruled that the state Gas Mining Law, ECL § 23-0303(2), does not supersede local governments’ rights to regulate the use of lands within their jurisdiction. The decisions in both of those cases, which upheld local bans on hydrofracking, have been appealed. Binghamton’s mayor has indicated that he will likely seek appeal as well.
As the Times-Union reports, more than 30 local governments in New York have enacted bans on gas drilling, and more than 80 have enacted moratoria.
The Broome County ruling follows on the heels of a decision in federal court dismissing the lawsuit brought by the New York Attorney General and environmental groups seeking federal environmental review of proposed natural gas drilling in the Delaware River basin. Judge Nicholas Garaufis of the Eastern District of New York found that the plaintiffs’ claims were speculative and relied “on a chain of inferences that may never come to pass,” and thus that the plaintiffs did not have standing to sue. Specifically, the Delaware River Basin Commission has issued draft regulations that would allow hydraulic fracturing in the basin, but has not yet finalized those regulations. Because the regulations are still in draft form, the court refused to find that an injury was imminent.