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Court of Appeals Hears Arguments on Towns' Ability to Ban Fracking

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Albany/HV: Court of Appeals Hears Arguments on Towns' Ability to Ban Fracking
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ALBANY, N.Y. -- The state's highest court on Tuesday heard two cases that could decide whether local governments have the power to block high-volume hydrofracking in their communities.

"I think the judges get the issues. I think as Judge Lippman said at the end they understand the policy arguments, it's for them to decide," said attorney Tom West.

Lawyers in favor of upholding the bans on the local level insisted to the state Court of Appeals that the towns of Dryden and Middlefield are exercising their right to issue zoning laws.

"Both of these towns have long-standing zoning codes that do not permit any industrial activity. This isn't aimed at the oil and gas industry. What they've trying to do is clarify what the rules have been all along," said Debra Goldberg, a lawyer with Earth Justice.

The bans have been upheld in the lower courts, both lawyers for the natural gas industry have taken their case to the state's highest court, noting in arguments that communities can't prohibited entire industries.

"We think that this is really a very, simple, straightforward case that the courts below have really misinterptred," West said.

And they argue that allowing communities to set their own limitations on fracking could present problems.

"Are we going to let 932 towns decide the energy policy of New York state?" attorney Scott Kurkoski asked.

The state's judges appeared skeptical of the arguments from both environmental lawyers as well as attorneys from oil and gas industry.

"What can the municipality do in relation to fracking? Nothing? They have no say in what happens? The elected officials have no say what happens in that municipality? The elected official says there's nothing they can do?" asked Court of Appeals Chief Judge Jonathan Lippman.

Assuming you're right, the Legislature that passed this law was thinking about conventional drilling?" asked Robert Smith, an associate judge.

On the state level Gov. Andrew Cuomo has directed the state to review the health impacts of high-volume hydrofracking. However that review is yet to be released, and no permits have been released for high-volume hydrofracking after the state has missed multiple regulatory deadlines to do so.

And given that this is an election year, few believe Cuomo will make a decision on fracking any time soon.

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