There are many towns on
Long Island that pride themselves on their quaint, small-town characteristics
and their colonial history. Residents of these towns often worry that their
communities will be tarnished or disrupted by an excavation site in their
backyards.
However, New York’s
highest court has recently upheld the power of local governance to regulate
businesses in its borders. According to this ruling, towns have
the right to ban fracking by using local zoning ordinances if fracking disrupts
the character and integrity of these communities.
Fracking is a
method of hydraulic extraction. High-pressure fluid is injected into cracks in
the earth to release a higher quantity of oil and gas. There is a huge movement
in the United States against the use of fracking as it has numerous
environmental risks, such as groundwater contamination and earth tremor
causation.
The towns Dryden and
Middlefield, both located in upstate New York, are rural communities that rely
heavily on agriculture and small town tourism. In the mid-2000s, two companies,
Norse Energy Corp. and Cooperstown Holstein Corp., had tried to develop and
extract natural gas in the areas. Responding to rigorous protests, the Town
Boards of Dryden and Middlefield banned the use of fracking due to the environmental
and health implications involved in the controversial method. Nonetheless, the
two companies maintained that state law was on their side and that they had the
right to develop in the areas.
The New York Court of
Appeals has upheld the decisions of the lower courts by ruling in favor of the
towns. Pursuant to the Municipal Home Rule Law, by banning fracking, both towns were exercising their local
governance rights in the preservation of the character, welfare, and aesthetics
of their communities. If fracking threatens the integrity of a town, that town should
be able to reject it based on the Home Rule
Law.
Interestingly, this ruling
was not based on any scientific conclusion that fracking is harmful to the
environment. Oil companies that want to pursue fracking may do so in areas
where fracking is not restricted or banned by local ordinances. Instead, the
decision discussed the towns’ objection to fracking on the ground that it would
cause heavy traffic congestion in the towns and industrialize the small-town,
rural areas.
Also, this decision is of
note as it comes out the exact opposite of the Court’s February 14, 2013 decision
in Sunrise Check Cashing and Payroll Services v. Town of
Hempstead, in which the Court declared
that the Town of Hempstead could not ban check cashing establishments from the
area because its zoning ordinance did not demonstrate that the business had a
negative impact on the community. Consequently, reading these decisions
together yields an understanding that a town can ban businesses such as adult
entertainment and fracking for having negative impacts on the community, but
cannot ban check cashing and fast food businesses as there is no objective
negative impact. So, the Sunrise case reminds us that this latest decision on
fracking is not to be read broadly in garnering an understanding that a town
has free rein to prevent any business it dislikes from existing in its borders.
Instead, a town must have a legitimate objective belief that the subject business
negatively impacts the community, beyond conjecture, in order to block it from
the Town’s jurisdiction.
