- The Washington Times - Thursday, May 2, 2013

With its ruling on Thursday, a New York appeals court delivered a key victory to environmentalists in their fight to keep fracking out of the state.

But the decision — affirming that local governments can ban the practice — may have been an even bigger gift to Democratic Gov. Andrew Cuomo, still waffling on whether to green-light fracking.

“This is the ultimate out for Gov. Cuomo,” said James Pardo, a New York City attorney who represents numerous oil and gas companies.

By granting municipalities the right to outlaw or permit fracking as they see fit, the fight will now play out in town halls across the state rather than in Albany, Mr. Pardo said.

New York currently has a moratorium on fracking, but this decision could let Mr. Cuomo be all things to all people — lifting the ban under strict environmental controls while putting the onus for the ultimate “no” decision on local officials.

“It takes the fight local, which may not be a bad thing,” Mr. Pardo said. “I think there are a lot of communities that want this to happen.”

The landmark case began after the small community of Dryden voted in 2011 to ban all oil and gas development, including fracking, within its borders. A lower court ruled in February 2012 that Dryden had the right to enact such a prohibition even before the state had done anything, but that decision drew an appeal from Norse Energy Co., which had sought to do business in upstate New York but has since filed for bankruptcy.

While Thursday’s ruling is specific to Dryden, it will have ripple effects across New York.

Dryden is one of at least 150 local governments in the state to reject the practice; Thursday’s ruling suggests that all of those prohibitions will stand up to any legal challenge.

“We hold that [existing state oil and gas law] does not preempt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders,” the court’s ruling reads in part.

The decision immediately drew praise from officials in Dryden, who painted it as a victory for local control.

“The people who live here and know the town best should be the ones deciding how our land is used, not some executive in a corporate office park thousands of miles away,” said Dryden Town Supervisor Mary Ann Sumner.

Meanwhile, Mr. Cuomo continues to weigh the larger of question of whether any fracking should take place in upstate New York. By his own admission, much of the area is economically depressed and in need of a boost — something the oil and gas industry could provide. The sector has created thousands of jobs and revived local economies in neighboring Pennsylvania and elsewhere.

Mr. Cuomo has delayed a decision for several years. Most recently, he called for yet another study on the potential health effects of fracking.

Political analysts have said that, by waiting so long, the governor has painted himself into a corner. Allowing fracking would anger environmentalists, critical to his potential 2016 presidential run. Stopping it would run counter to his pledge to jump-start the state’s economy and could potentially damage relations with another key Democratic constituency — labor unions.

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