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English: A photograph of the the New York Stat...


Contributor Dan Sabbatino provides an update on the third municipality to win a local fracking ban challenge in lower-level court.

Counsel from both sides of an appellate-level hydrofracking case gave credit to a four-judge panel for asking well reasons questions, having a solid understanding of a weighty science-based issue and showing a genuine interest in the topic.

Deborah Goldberg, an Earth justice attorney representing the Town of Dryden, where a town-wide ban on fracking was passed, and Thomas West, an attorney representing Norse Energy Corp., with gas interest in the town, each credited the justices with a robust give-and-take during oral arguments Thursday, March 21 in an Albany courtroom.

“It’s the job of the judges to seem skeptical of both sides,” Goldberg said during a rally in the state Capitol after court let out. “This is perfectly standard procedure.”

West said the panel was one of the best informed he has encountered in a case like this. “All four justices were very well prepared,” he said. “They beat up both sides equally.”

The questions, for the most part were expected, spare a few curveballs, but all of the justices inquiries were “well on point,” West said.

Goldberg said the judges’ ability to cite specific page numbers in the briefs and their well-reasoned questions were welcome indications the panel had grasped the pertinent items.

Neither attorney said the justices appeared to tip their hands. Goldberg did say, though, justices will often critique the side they favor more in order to solidify their position and make sure their ruling won’t be porous. “As an attorney, I will never predict what a court will do,” she said.

Both counselors reiterated the strength of their case on the heels of another town’s local ban on high-volume horizontal hydraulic fracturing being upheld in court. The Town of Avon in Livingston County successfully defended a challenge to its ban as county judge Robert Wiggins ruled the precedent from Dryden and Middlefield dictated it should stand.

West said he suspects recent decisions handed down in Avon is the result of judges’ feeling constrained by the precedent set in Dryden and Middlefield, which he sees as flawed. Goldberg looks at it through a different lens, though. She said the ruling is evidence of the strength of local sovereignty over zoning.

Goldberg has continually argued pertinent statute shows the state’s authority is limited to regulating “things that require technical expertise” and not zoning.

West has continually argued part § 23-0303 of New York's Environmental Conservation Law, which reads: “the provisions of this article shall supersede all local laws or ordinances relating to the regulation of oil, gas and solution mining industries, [except with respect to local roads and real property tax law]” indicates the state should have the last word on natural gas extraction, not municipalities. He also said mineral owners’ rights are being infringed upon and they are losing “billions” in potential revenue.

Both attorneys indicated they are prepared to head to the Court of Appeals, the state’s highest court.

Dan Sabbatino, an award winning journalist whose accolades include a New York Press Association award for a series of articles he wrote dealing with a small upstate town’s battle over a the implications of letting a “big-box” retailer locate within its borders. He has worked as a reporter and editor since 2007 primarily covering state and local politics for a number of Capital Region publications including The Legislative Gazette, where he currently serves as assistant editor.

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Last modified on Sunday, 19 May 2013
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