ALBANY GAS DRILL FOES SEE VETO-PROOF VOTE

Common Council set to revisit issue after earlier mayoral rejection

JORDAN CARLEO-EVANGELIST
Section: Capital Region,  Page: B1

Date: Saturday, February 25, 2012

ALBANY -- Hydrofracking opponents said Friday they now have a veto-proof majority to again pass a citywide ban on gas drilling that Mayor Jerry Jennings struck down in October.


Emboldened by a judge's ruling this week in favor of a Tompkins County town that also used zoning law to bar shale gas exploration within its boundaries, Councilman Dominick Calsolaro said he will reintroduce his ordinance -- criticized by some as largely symbolic -- to the Common Council in March.


The court victory by the town of Dryden has persuaded Councilman James Sano, who abstained from the first vote citing fears about litigation, to support the measure.


Sano joined other opponents of the natural gas drilling technique at a City Hall news conference Friday morning, where he said he believed the Dryden decision has "diminished, if not eliminated" the city's legal jeopardy.


"Now that that court case is settled, I feel most confident," Sano said.


The news conference came even before a second judge later Friday upheld the rights of towns to ban fracking, this time in the Otsego County town of Middlelfield.


If no other lawmakers change their votes, Sanos' support could give the measure's supporters the ability to override a mayoral veto for the first time in the city's modern history -- if not ever.


Even without Sano's backing the first time around, the ordinance passed with the minimum required eight votes.


Jennings, however, vetoed the bill, saying it would be more prudent to allow state environmental regulators at the Department of Environmental Conservation to finish drafting rules governing the drilling process. The veto override attempt failed by one vote.


Jennings reiterated that argument Friday morning on his radio show, also noting a trial court judge outside of Ithaca is not likely to be the final word on an issue affecting such a large and lucrative industry.


"That was a lower court," Jennings said, adding that he was wary of exposing the city to the expense of a similar lawsuit. "I'd just as soon leave it to EPA and DEC. Let's just move cautiously on this. ... I have a fiscal responsibility too."


Councilman Michael O'Brien, an attorney who said he is against drilling in the city but believes the city does not have the legal authority to ban it, suggested Calsolaro and his backers are being naive if they don't think the matter will be settled in state appeals courts.


"I believe there's a misperception as to the authority of one judge in Tompkins County," said O'Brien, who suggested the sentiment would be better expressed in a non-binding resolution.


Calsolaro countered that he's well aware the matter will likely be appealed but said he believes cities and towns have a fundamental right under state law to control what happens in their backyards.


"Municipalities have the right to zone the use of our land," he said.


The lawsuit and the debate in Albany have hinged on whether the state's authority to regulate the gas industry pre-empts that -- and whether zoning amounts to regulation.


Meanwhile, a resolution that would ban hydrofracking on county-owned land is working its way through the County Legislature. Its sponsor, Legislator Chris Higgins, said he hopes to expand the legislation to impose deed restrictions that would, in the future, prevent drilling on that land even if the county were to sell it.


Some opponents have panned the city of Albany's proposed ban because drilling is not likely to occur here because the city doesn't sit atop the coveted, gas-rich Marcellus Shale. Fracking opponents note Albany sits above the Utica Shale and contend it would send a strong message if the state capital joined the dozens of other communities that have passed or are considering prohibitions.


"When Albany does something," Sano said, "it does make bigger news."


jcarleo-evangelist@timesunion.com - 518-454-5445 - @JCEvangelist_TU