On June 30, 2014 in a 5-2 decision, New York’s highest court ruled that towns may prohibit fracking through local zoning ordinances. The Towns of Dryden and Middlefield had enacted zoning ordinances explicitly prohibiting fracking. While both Dryden and Middlefield believed that preexisting zoning rules prohibited fracking because it was not specifically permitted, they took steps to clarify their laws by explicitly prohibiting fracking after Norse Energy Corporation (Norse) and Cooperstown Holstein Corporation (CHC) undertook steps to begin fracking. Norse had acquired oil and gas leases from landowners in Dryden, while CHC executed two leases with a landowner with the intent to pursue fracking in Middlefield.
Following the towns’ enactment of the fracking prohibitions, Norse and CHC filed suit claiming that the OGSML preempted local attempts to ban fracking due to the OGSML’s preemption clause that states:
“The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”
The Court of Appeals found that the preemption clause only restricts the ability of local towns to regulate how to conduct oil, gas and solution mining activities. The preemption clause does not restrict the ability of local towns to regulate where these activities are permitted to take place through zoning.
The Court of Appeal’s decision comes while the New York state government evaluates whether to permit fracking. New York has issued a moratorium on fracking while the state Department of Health conducts a review of fracking’s potential health impacts. The long-running study is not likely to be concluded until 2015, at earliest.
Local fracking bans have been enacted throughout the country, as the national debate on fracking continues. New York’s ruling is an important victory for anti-fracking activists, although the impact may have limited reach in other states. Ohio’s Supreme Court is currently considering a similar zoning case, although the Ohio laws are not identical. Professor John Nolon, a land use professor at Pace University School of Law, believes the case may influence other state courts to uphold local fracking bans, stating, “[t]o the extent that this decision is based upon New York State’s delegated land use authority to local governments, it resonates in the other states.”
Colorado’s Supreme Court recently ruled that anti-fracking ballot initiatives can proceed. If the ballot initiative proponents can obtain a sufficient number of signatures, Colorado voters will vote on whether to increase the distance between drilling rigs and homes and whether local authorities can prohibit or limit fracking within their jurisdictions.
Red-on-line EHS Legal Counsel
Sources : Wallach v. Town of Dryden et al. and Cooperstown Holstein Corp. v. Town of Middlefield, Case Nos. 130 and 131, New York Court of Appeals, June 30, 2014
Ellen M. Gilmer, Fracking foes look to N.Y. decision for ammo, E&E News Energywire, June 23, 2014
N.Y. health commissioner mum on painstakingly long fracking review, E&E News Energywire, February 4, 2014
Supreme Court of Ohio, Are Local Zoning and Drilling Ordinances in Conflict with the State Oil and Gas Drilling Law? State ex rel. City of Munroe Falls v. Bek Energy Corp., No. 2013-0465
Timothy Cama, “‘Watershed moment’ for fracking foes?” The Hill, July 6, 2014