Home rule fracking decision challenged in Avon

Apr 25, 2013

Gas and Oil producer Lenape Resources has filed a note of appeal as part of an attempt to overturn a court decision made in March that allowed the town of Avon to maintain its moratorium on fracking. This is the third case of this kind in upstate New York.

President of Lenape Resources John Holko says his company can’t survive in Avon if the fracking moratorium is upheld.

“The moratorium itself is a cancellation of a business. It’s not a prohibition of an opportunity, it’s the elimination of our existing business.”

The company lost a law suit against the town of Avon last month, in which it argued that the local ban was illegal as the Department of Conservation has sole power to regulate the state’s gas and oil industries.

A case challenging similar home-rule decisions in the towns of Dryden and Middlefield is currently before the Appellate Division of the state Supreme Court.

Lenape’s lawyer is expected to file a formal appeal in mid-May, after the Appellate Division makes a ruling on the other two cases.

John Holko says if the moratorium is overturned in the court of appeals, Lenape would resume operations in Avon. He says it may also encourage other industry partners to bring business back to New York.

“Other industry people, and other operators who have operated in New York state for upwards of 100 years are very concerned, and they look at this decision as something that is a major decision in changing the rule that the State of New York has over the oil and gas regulation,” Holko says.

“Lenape was convinced by the industry in general to say, ‘hey, look, we need a much clearer answer.’ So, to get a clearer answer, my understanding from the legal people is that you sort of have to go up the ladder and get the ultimate answer.”

Reaction from Avon locals

Avon town supervisor, David Lefeber says the moratorium was supported by a large majority of residents. But, the issue is still clearly controversial, with mixed views on the subject.

Local Joyce Faville says town officials should fight an appeal as there is too much at stake if fracking proves to be a danger to water and land quality.

"I think they should keep the ban in place until there's more data on how they're going to control the companies that are going to do this, because there's just too much risk to our ground water and we don't really need the energy right now, it's a money grab.”

But, others disagree citing the economic benefits the town has to gain if they allow gas exploration and drilling.

Local store manager Geoff Maves says if towns like his can ban fracking, it should be a two way street.

"A municipality should have the right to permit fracking in their town whether or not the state or federal government wants to put a stop to that or not. If it's up to the municipality to ban it, it should be up to the municipality to permit it."

Avon's current ban will expire on June 28th, at which time the town board will decide whether to extend it or allow it to lapse.

David Lefeber says there are many factors that will need to be taken into account before a decision is made. But, he says the board is due to overhaul the town’s comprehensive plan and, if the moratorium was deemed an ongoing necessity, blocks could be put in place in the new plan to ensure local zoning regulations do not permit drilling or gas exploration.