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Second New York judge upholds fracking ban in towns

By Dave Wiessner

ALBANY, New York (Reuters) - A New York State judge on Friday upheld an upstate community's ban on gas drilling, marking the second victory in the space of a week for opponents of the controversial drilling method known as fracking.

The authority vested in towns and cities in New York to regulate use of their land extends to prohibitions on drilling, acting state Supreme Court Justice Donald Cerio ruled on Friday, dismissing arguments by a landowner who has already sold leases on almost 400 acres.

"Municipalities are not preempted...from enacting local zoning ordinances which may prohibit oil, gas and solution drilling or mining," Cerio wrote. "The state maintains control over the 'how' of (drilling) procedures while the municipalities maintain control over the 'where.'"

Jennifer Huntington, a dairy farmer, argued the town of Middlefield's ban is preempted by a state law designed to create a uniform regulatory scheme for the oil and gas industry. But Cerio disagreed, holding that nothing in the legislative history of the law and its numerous amendments suggests state lawmakers intended to stop towns from barring heavy industry.

Middlefield is about 70 miles west of Albany.

Cerio's ruling is similar to a decision released Tuesday that dismissed a bid by gas company Anschutz Exploration Corp. to overturn a drilling ban in the Ithaca suburb of Dryden.

In that decision, Supreme Court Justice Phillip Rumsey held state law was crafted to regulate industry in such a way that "protects the rights of all persons."

The rulings come as the state Department of Environmental Conservation prepares a final report on the safety of fracking, which is currently not allowed in New York. Gov. Andrew Cuomo is expected to make a final decision on the issue later this year.

Fracking is a process in which chemical-laced water and sand are blasted deep below ground to release oil and natural gas trapped within rock formations. It has allowed companies to tap a wealth of new natural gas reserves in other states, but critics say the procedure has polluted water and air.

Middlefield's attorney, David Clinton, was not immediately available to comment, but said earlier on Friday that victories in his case and in Dryden could have statewide implications.

"For the last year or so, the gas industry has been threatening (towns), 'you're going to lose in court, so don't even waste your money,'" said Clinton, who is also a partner at Gozigian, Washburn & Clinton. "So (the Dryden decision) certainly emboldens other towns."

Huntington's lawyer, Scott Kurkoski of Levene Gouldin & Thompson, did not immediately return a request for comment, but said earlier this week that a ruling in favor of the town could chase drilling companies from the state.

"If the decisions are going to be made at the local level, they are not going to have an effective energy policy in New York," Kurkoski said Wednesday.

Environmental groups celebrated the pair of decisions, which say "that ordinary citizens, and the local governments who listen to them, have power to determine the character of their communities for themselves," the group New York Water Rangers said in a release.

But others maintained the Middlefield and Dryden rulings are likely to face challenges in state appellate courts, where they may be more insulated from local politics and could spur a reversal.

"The decisions reflect a political, reactionary response, not a logical and objective interpretation of the law," said Richard Gerard, an Elmira attorney who represents landowners.

The case is Cooperstown Holstein Corp. v. Town of Middlefield, New York State Supreme Court, Otsego County No. 011-0930.

(Reporting by Dave Wiessner)

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