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It’s the law

May 10, 2012

Recently we listened to an interview by New York State Department of Environmental Conservation (DEC) Commissioner Joseph Martens that troubled us for reasons that may not be immediately obvious ( Martens said that local land-use rules regarding gas drilling will “continue to be a consideration” in permitting for gas drilling. He also said that it will be easier to permit drilling in areas where there is not a local land-use plan in place, and added, “That’s not to say that we’re going to prohibit them in other places” (i.e., where there is a land-use plan).

No surprise here, you might say. That’s pretty much what the DEC’s SGEIS on horizontal hydrofracking released last year said. There’s only one problem: since that time, two separate judges, in the cases of the towns of Dryden and Middlefield, have upheld the power of land-use plans to prohibit drilling. It was not accurate on April 26 when Martens gave the interview, and is not accurate today, to say that the DEC has the discretion to “consider” local land-use laws: it must comply with them. Nor can drilling be anything but prohibited in zones where local ordinances ban it. The fact that the cases are on appeal does not change the status of current law.

We contacted the DEC to try to clear this up, and didn’t make much progress. A representative told us that Martens has always stated publicly that he will abide by whatever the courts decide. Of course, we know that. But that just makes it all the more puzzling that Martens, in this particular interview, spoke as though the current, default state of the law is that the DEC has the discretion to override local zoning. We don’t believe it was intentional—Martens seems to be a good commissioner—but the effect of these remarks is to muddy the waters of public discourse, and lead listeners to believe that, since the rulings on the towns of Dryden and Middlefield are being appealed, the law is somehow in a state of suspension.

It’s not. The law says local zoning has the power to ban drilling. And in fact, when the appeals courts do rule, the probabilities favor their upholding the lower courts: a U.S. Department of Justice study done for the years from 2001 to 2005 concluded that lower court rulings are upheld in roughly two-thirds of all civil cases that are appealed (