How many remediation angels can dance on a single remediation pinhead? In the recent NL Industries v. ACF Industries ruling, a federal judge in the Western District of New York decided that, for the purposes of CERCLA cost recovery and declaratory judgment claims, all actions taken to clean up a Superfund site constitute one set of remedial actions, regardless of the number of "operable units" the site is divided into during the remediation.
Love Canal, New York; Cuyahoga River, Ohio; Times Beach, Missouri; Hopewell, Virginia; Three Mile Island, Pennsylvania. These are the sites of some of the worst environmental contamination in our nation's history. Each of these disasters drew significant public attention, and incited the political will to confront similar environmental hazards more systematically.
Previously in our "Fracking NY" Blog Series, we summarized the two recent New York Supreme Court cases - Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458 (Sup. Ct. Tompkins Co. Feb. 21, 2012) and Cooperstown Holstein Corp. v. Town of Middlefield, 2012 N.Y. Misc. LEXIS 1420 (Sup. Ct. Otsego Co. Feb. 24, 2012), which both upheld local municipalities' authority to ban oil and gas operations (as a round-about way of banning the controversial high-volume hydraulic fracturing, or "fracking," operations specifically) - as being not preempted by the State Oil and Gas Act ("OGSML"). To read about those cases, please click here and here. As we expected, both of those cases were appealed to the Supreme Court of New York, Appellate Division, Third Department.
So far in the Periconi, LLC "Fracking NY Blog Series," we've outlined state, interstate, and federal regulation of high volume horizontal hydraulic fracturing (or "fracking"). We now turn to yet another layer of potential regulation of fracking in New York State: local zoning ordinances. Two towns - Dryden and Middlefield - which have enacted zoning ordinances that ban fracking within their borders have had those zoning ordinances challenged by industry and/or landowners. In the past week, both of these cases were decided in favor of upholding the bans. This blog post will cover the Town of Dryden case. (Click here for the Town of Middlefieldcase.)