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State's highest court upholds towns' hydrofracking bans (Updated)

By Tom Precious
NEWS ALBANY BUREAU CHIEF

ALBANY -- In a case closely watched by localities along with environmental and energy interests, the state’s highest court this morning affirmed the rights of two towns to use local zoning ordinances to ban fracking for natural gas.

The 5-2 decision could have widespread implications for the future of the controversial hydrofracking process that is, by edict of the Cuomo administration, on hold at present across New York.

The Court of Appeals said there is nothing in the state’s oil and gas statute that preempts a locality’s right, through zoning provisions, to ban certain kinds of land uses, such as the controversial fracking process.

The case had been brought by Norse Energies, which had rights to about 22,000 acres of land that it wanted to use for oil and gas exploration and drilling. It challenged the town’s ban saying it exceeded its legal authority. The company has since gone bankrupt, but the case was also merged with one brought by Cooperstown Holstein, a dairy farm in Middlefield in Otsego County that had signed a deal with a private company for gas drilling on its land.

Lower courts had already ruled in the cases that bans on certain industries done through local zoning laws are not preempted by New York’s Oil, Gas and Solution Mining Law, which the two plaintiffs argued should prevent localities from enacting a hodge-podge system of fracking bans by having a single state law set out the terms for gas drilling in New York. The law has its roots going back to 1935.

Today’s court decision by the Court of Appeals upholds those lower court rulings. Dryden in 2011 banned any activities related to natural gas exploration or drilling, and Middlefield, like dozens of other localities around New York, amended its zoning rules to ban oil and gas drilling within its town limits.

More than 100 localities across the state have enacted some sort of bans on fracking, and local officials and environmentalists will cheer the court's decision. But for the natural gas industry, and landowners who have sold or leased drilling rights, the decision represents a major financial blow and one that will send a chilling effect to the industry about its prospects for doing business in New York state.

Gov. Andrew Cuomo, now nearly four years in office, has still not decided whether to life a state moratorium on new fracking operations, a move critics say is costing the state thousands of jobs. Environmentalists, meanwhile, have been protesting Cuomo over the issue at every opportunity, including a deep-pocket fundraiser he has scheduled for tonight in Manhattan. Zephyr Teachout, the Fordham law professor who is trying to challenge Cuomo in a Democratic Party primary, is among those expected at the protest outside Cuomo's fundraiser.

The court today said there is nothing even implied in the state’s oil and gas law that suggests localities can’t use zoning procedures to dictate the kinds of land uses permitted in its borders. The court said it could also find no “legislative intent’’ by the Assembly and Senate seeking to stop localities from taking the steps Dryden and Middlefield took to ban fracking.

The court said the Legislature, if it chose to, could tighten the law to ban localities from using zoning laws to halt hydrofracking, but that it has never done so.

The court also cautioned that it was taking no stand on the issue of hydrofracking; that, the court said, is a matter for the executive and legislative branches to decide.

“At the heart of these cases lies the relationship between the state and its local government subdivisions and their respective exercise of legislative power,’’ the court said.

Brad Gill, executive director of the Hamburg-based Independent Oil and Gas Association of New York, said the court’s ruling will have a “chilling effect’’ on companies that have been eyeing fracking in a state that, for six years now over two gubernatorial administrations, has had a de facto ban on the drilling process.

Gill estimated that there are nearly 200 localities in the state with some sort of ban on fracking; he was not immediately sure how many of those are resolutions by local legislative bodies, which are not covered by today’s decision, versus zoning ordinance bans on fracking that the court’s ruling affects.

Gill said the ruling will hurt not only individual energy companies, but local landowners who have been hoping to sell or lease drilling rights. He noted there are still many communities that have long had conventional gas and oil drilling and have not enacted bans on fracking.

“It certainly sends a clear message to our member companies who have had holdings in New York state who several years ago decided to leave New York and invest in Pennsylvania and Ohio,’’ Gill said, adding that the ruling will create a “patch-work’’ of rules that will vary by locality if New York state ever does lift the ban on fracking.

“You’ve got to make business decisions based on certainty. We don’t have that in New York,’’ he said.

But New Yorkers Against Fracking, an environmental group, hailed the decision
for affirming the right of New Yorkers to ban fracking and its toxic effects from their communities.''

The group called on Cuomo to enact a statewide ban on fracking.

"As other states  roll over for a very deep-pocketed fracking industry, communities throughout New York – large and small – have challenged them and won,'' said Katherine Nadeau, policy director at Environmental Advocates, an umbrella organization.

"The fracking industry has spent millions to bully our state, even sending a team of lawyers to strip away the rights of communities who have chosen to ban fracking within their municipal lines. Cities, towns and villages have long retained the right to protect against industries they believe can cause harm, and this was nothing more than a brazen attempt by frackers to exploit the judicial system for their own financial gain,'' she said in a statement this afternoon.

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NYPIRG releases '14 legislative session analysis

By Tom Precious

ALBANY -- As is often the case with Bill Mahoney, the expert number cruncher with the New York Public Interest Research Group, his analysis of the recently concluded 2014 legislative session is informative and witty.

The analysis, released today, shows everything from number of bills introduced, how lawmakers vote their party lines with actual counts and when the real crunch work gets done -- which, like always, was the last few weeks of session.

The analysis shows, for instance, that Assemblyman Robin Schimminger, a Kenmore Democrat, voted no on legislation 99 times -- more than any other Assembly Democrat. Assemblyman Sean Ryan, a Buffalo Democrat, voted no just 17 times, while Assembly Speaker Sheldon Silver cast 1,160 votes -- all yes.

The NYPIRG report shows which lawmaker got the most laughs on the floor -- hint: Southern Tier Republicans can be funny -- and that Sen. Liz Krueger, a Manhattan Democrat, uttered 27,199 words during floor sessions this year. Sen. John Sampson, a Brooklyn Democrat, had only one word to say once all session: "Aye."

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Police request equipment upgrades to collect phone data

By Jill Terreri

The release of a unanimous U.S. Supreme Court decision dictating that police need a warrant in order to search a cell phone coincides with a request by the Buffalo Police Department to purchase equipment that would transfer all data from a cell phone so it could be examined by detectives. 

Police Commissioner Daniel Derenda said the department's possession of the data-transfer device does not change the fact that a warrant is necessary to search someone's phone. 

"As the Supreme Court says, you need a warrant," Derenda said. "But we've never gone through anyone's cell phone without their permission, just like permission to search, or need be, we'll get a search warrant. So really, procedures aren't going to change." 

Common Council members have been concerned about whether all officers know that citizens do not need to turn over their phone if an officer does not have a warrant, based on anecdotes from their constituents and from published reports. At least one officer, John A. Cirulli, was reported to have demanded that a bystander turn over their cell phone, in an incident in which he was caught on video hitting a suspect in handcuffs. He resigned. 

The Police Department is asking the Common Council permission to purchase "universal forensic extraction devices" from Cellebrite

Continue reading "Police request equipment upgrades to collect phone data" »

Skelos: Cuomo showed a "lack of inner strength"

By Tom Precious

ALBANY -- The Republican co-leader of the Senate is lashing out at Gov. Andrew M. Cuomo and New York City Mayor Bill de Blasio for the deal announced Wednesday in which a small band of independent Democrats say they will form a new coalition with the main Senate Democratic conference to oust Republicans from power.

“He’s a Democrat, but what’s surprising to me, really, is the failure in character to stand up to the Working Families Party and Bill de Blasio and just cave to their radical demands," said Sen. Dean Skelos, a Long Island Republican, about Cuomo in an interview with The Buffalo News this afternoon.

Skelos said Republicans will pick up seats to maintain the majority this fall. But he said the deal that Cuomo helped put together with Senate co-leader Jeff Klein, a Bronx Democrat, if successful, will disenfranchise upstate and Long Island by putting legislative power into the hands of New York City Democrats.

Skelos said that four years ago Cuomo dictated demands to the Working Families Party for him to run on their line. “This time it was the timid Andrew Cuomo who sold out politically and governmentally to the Working Families Party and what they represent."

Skelos dismissed Cuomo’s claim that he wants a more “progressive" agenda than Senate Republicans were willing to give him, noting that Cuomo got through a major gun control law, legalization of marriage rights for gays and an increase in the minimum wage with Republicans in partial control of the Senate.

As for de Blasio, who Skelos says helped orchestrate the endorsement by the Working Families Party of Cuomo, the New York mayor is poised to become “the de facto governor" of New York if he gets his way and a New York City-dominated Legislature is in place in both the Senate and Assembly.

“We’re going to win back the majority. This year, I think, is better than 2010, when we won back the majority," Skelos said. He said New York voters will react to what he characterized as policy problems in the Obama White House as well as Cuomo “moving away from a bipartisan government to a total New York City-type state government."

Skelos said he has not talked to Cuomo since the end of the session last week. Cuomo this week went to Binghamton, Rochester, Buffalo and then Long Island –- appearing at each event with Republican senators while touting his ability to work across the aisle.

“I think what he was doing by embracing Republicans at events is sending a message of bipartisanship while in the background he is basically looking to destroy bipartisanship in this state and have totally New York City dominance and takeover of the state," Skelos said.

Asked if the whole episode will now see Senate Republicans cozying up to Rob Astorino, the party’s gubernatorial candidate, Skelos said: “I endorsed Astorino a long time ago. He’s our candidate. It’s not just about Republicans endorsing Republicans and Democrats endorsing Democrats. It’s that the governor showed a lack of inner strength and character by capitulating to the Working Families Party and the radical left agenda."

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Skelos on Klein deal: Deal? What deal? Everything is fine

By Tom Precious

ALBANY -- Here is the statement tonight from Republican Senator Dean Skelos on the claim by his fellow Senate co-leader, Democrat Jeff Klein, that Republicans are out of power and it's all in for Democrats come January.

"It’s unfortunate that Mayor de Blasio, the radical Working Families Party and their co-conspirators in the Senate Democratic Conference are attempting to take control of the New York State Senate. This ‘agreement’ is nothing more than a short-term political deal designed to make threatened primaries go away.

"Both Senator Klein and I realize that our historic coalition has made great progress for the people of this state, and more importantly the majority of New Yorkers believe that as well. In fact, just today the Governor was touting our shared accomplishments.

"It’s unfortunate that the Governor would cave to the Working Families Party and what they stand for - - higher taxes and spending - - and is that concerned with a primary from a largely unknown challenger. Many of the achievements we’ve had together over the last four years would not have become reality without strong Senate Republican leadership, and would not have occurred with an all-Democrat state government.

"Senator Klein has witnessed what it’s like to govern in a Senate that was dysfunctional and in one that has functioned well. No one wants to return to those days of failure and chaos. In the heat of primaries and elections, people say a lot of things. When primary season is over, I’m confident that cooler heads will prevail. And, make no mistake that once the dust settles from this election, Republicans will have a full majority. Even then, we will continue to work with Democrats to cut taxes, create jobs and move this state forward.''

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Klein says goodbye to coalition with Senate GOP; Cuomo says good

By Tom Precious

ALBANY -- Here is the statement by Senate co-leader Jeff Klein and Gov. Andrew Cuomo will work to form a new coalition with main Democratic conference after November elections:

Senator Jeffrey D. Klein said, “The Independent Democratic Conference has served as a strong, stabilizing, sensible force for governing in New York State for four years. Under a first-of-its kind bipartisan, coalition government the IDC ushered in a functioning New York State Senate and delivered unprecedented results for working families, including four consecutive on-time budgets, passing the toughest gun control laws in the nation, marriage equality, an increase to the minimum wage, universal pre-k for thousands of toddlers and the safe, regulated use of medical marijuana.

“Yet as we reflect on these past achievements, it is also clear that core Democratic policy initiatives that the IDC championed remain unfinished. As Democrats, the IDC remains committed to the fight for an equal education for all New York students - which the Dream Act would provide, protecting a woman's right to choose, increasing workers' wages, and enacting meaningful campaign finance reform. I agree with Governor Cuomo that these are progressive priorities we must pass.

“Therefore all IDC members are united and agree to work together to form a new majority coalition between the Independent Democratic Conference and the Senate Democratic Conference after the November elections in order to deliver the results that working families across this state still need and deserve.”

Governor Andrew M. Cuomo said, “I applaud the IDC’s decision. There is no doubt that we have accomplished much for the state over the past four years. We have transformed the state government from dysfunctional to highly functional, a deficit to a surplus, and losing jobs to gaining jobs. There is also no doubt there are progressive goals that we have yet to achieve and that we must accomplish next January.”

 

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About Politics Now

Robert J. McCarthy

Robert J. McCarthy

A native of Schenectady, Robert J. McCarthy came to The Buffalo News in 1982 following a six-year stint at the Olean Times Herald. He is a graduate of St. Bonaventure University, and has been covering local, state and national politics since 1992.

rmccarthy@buffnews.com


Tom Precious

Tom Precious

Tom Precious joined The Buffalo News in 1997 as bureau chief at the state Capitol, where he covers everything from statewide politics and state government fiscal affairs to health care, environmental and municipal government matters. Prior to The News, he worked for news outlets in Albany and Washington, DC.

tprecious@buffnews.com


Jill Terreri

Jill Terreri

Jill Terreri is an Amherst native and has covered politics and government in upstate New York since 2003. She joined The Buffalo News in 2012 and covers City Hall.

@jillterreri | jterreri@buffnews.com


Jerry Zremski

Jerry Zremski

Jerry Zremski, The Buffalo News Washington bureau chief, has reported from the nation's capital since 1989 after joining The News as a business reporter in 1984. A graduate of Syracuse University, Zremski is a former Nieman fellow in journalism at Harvard University. In 2007, he served as president of the National Press Club.

@JerryZremski | jzremski@buffnews.com

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