Responding to Governor Corbett’s recent letter urging the Delaware River Basin Commission (DRBC) to take action to end its moratorium on gas development, the Delaware Riverkeeper Network sent DRBC a memorandum defending the moratorium and responding to leaseholder claims that DRBC’s inaction constitutes an uncompensated regulatory taking. Delaware Riverkeeper emphasized that the moratorium does not deprive landowners of all economically beneficial use of their land, and that economic loss resulting from the moratorium is mitigated by the ability to use the land for other reasonable purposes. DRBC is scheduled to hold its next public hearing on Tuesday, July 16, followed by a business meeting on Wednesday, July 17.
Democrats in the Monroe County Legislature are seeking to permanently ban fracking on county-owned land. If they succeed, Monroe County would join 13 other counties in New York that have enacted similar fracking bans on county land. However, the Democrats have not introduced proposed legislation, and they hope to work with Republicans, who hold a 19 – 10 majority in the Legislature, on developing specific legislative language. Several municipalities in Monroe County, including the towns of Brighton, Rush, Perinton, Mendon, Penfield and the City of Rochester, have banned fracking within their borders. New York’s highest court is currently considering whether to accept a request to review recent state appeals court decisions that upheld local laws banning gas drilling.
Lawyers for parties challenging local gas drilling bans enacted in two upstate towns filed briefs on May 31, 2013 asking the New York Court of Appeals to review recent intermediate appellate court decisions. Permission to review the decisions is required from the Court of Appeals since the intermediate court unanimously upheld the right of municipalities to ban drilling via local laws and zoning ordinances. In 2012, the Court of Appeals granted 6.4 percent of requests for permission to appeal, and 7.4 percent of such requests in 2011.
New York Governor Andrew Cuomo recently stated that he would make a decision on whether to lift the state moratorium on hydraulic fracturing before the 2014 election. Cuomo said that the results of a review of potential health effects from hydraulic fracturing by the state health commissioner, Dr. Nivah Shah, should be ready within several weeks. “I expected it to be concluded already,” Cuomo said. “It’s not in the distant future. But it’s not done yet.”
On May 20, 2013, the Town of Canandaigua, New York, adopted a local law to extend by nine months a moratorium on all natural gas exploration and extraction activities within the town. The new local law extends the initial 18-month moratorium passed by the Town Board, which was scheduled to expire on June 22, 2013, until March 22, 2014. The Town Board indicated that the nine-month extension will allow for the development of a local law to permanently ban high volume hydraulic fracturing activities within the town.
New York State officials said on May 1, 2013 that there is “no timetable on a decision” to lift the state moratorium on hydraulic fracturing. The Commissioner of the New York Department of Health said that new information obtained during a recent meeting with the U.S. Environmental Protection Agency will be included in the state’s public health review of hydraulic fracturing. A February 12, 2013 press release from the New York State Department of Environmental Conservation previously indicated that the public health review would be complete “in a few weeks.”
On April 10, 2013, the Oneida County Board of Legislature reportedly approved a resolution that prohibits the extraction of shale gas on property owned by the county. Oneida County is located in central New York to the east of Syracuse. The resolution provides that the ban on shale gas extraction will remain in place until further study of the potential environmental and public health impacts of hydrofracking is completed.
On March 15, 2013, the Town of Avon reportedly became the third upstate New York municipality to prevail in a court challenge of a local zoning ordinance banning gas drilling. The trial court rejected the argument that New York’s Oil, Gas and Solution Mining Law preempted the town’s moratorium on gas drilling. In its decision, the court cited two previous decisions that upheld local bans in the towns of Dryden and Middlefield, which are both currently on appeal before the New York Appellate Division.
On March 8, 2013, Pennsylvania State Representative Greg Vitali (D-Delaware County) introduced legislation, House Bill 950, to permanently ban Marcellus Shale leasing on “lands owned and managed by the Department of Conservation and Natural Resources” (DCNR). In 2010, then-Governor Ed Rendell imposed by executive order a moratorium on additional leasing of state forests for drilling. Vitali said his legislation is needed because Governor Tom Corbett could lift the Rendell moratorium at any time. According to Vitali’s press release, House Bill 950 would not affect drilling on private land, nor would it prevent drilling on the more than 700,000 acres of state forest already available for drilling.