Can A New York Town Ban Fracking Through Zoning?

October 24th, 2013

The Times has an interesting profile about the town of Dryden, New York, which passed a zoning ordinance that effectively prohibits fracking.

But Dryden could soon be synonymous with something more than animals and agriculture. In August 2011, the town passed a zoning ordinance effectively forbiddinghydraulic fracturing, the controversial gas extraction method also known as fracking. The ordinance, passed after a feisty local lobbying effort, prompted a lawsuit now being mulled by New York State’s highest court, the Court of Appeals, whose ruling could settle the long-simmering issue of whether the state’s municipalities can ban the drilling process.

Usually states, and not local communities are responsible for regulating environmental concerns. Turning to land-use regulations is a novel approach to tackling this issue.

The fracking companies have challenged it (I suspect) as either ultra vires, or beyond the scope of what a town can do through zoning:

Pro-fracking groups say that local intervention is counterproductive, likening it to needing a different driver’s license for each county.

“We can’t operate with a patchwork of acceptance,” said Mr. Gill, who added that the economic impact of the de facto moratorium and local bans have been extreme.

Indeed, the parent company of Norse Energy Corp USA, the plaintiff in the Dryden lawsuit, announced this month that it would liquidate the company, something that its lawyer, Mr. West, said made it “the poster child for the adverse impact” of such bans.

“The natural gas industry has left New York State like lemmings,” he said.

So far, lower state courts have sided with Dryden, saying it was within its rights to establish zoning restrictions. But in August, the Court of Appeals agreed to take up the Dryden case and another one involving a fracking ban in Middlefield, in Otsego County. It is not likely to rule until next year.

The decision to hear the appeal was hailed by Karen Moreau, the executive director of the New York State Petroleum Council. She said the weight that such a small town board could carry was frightening, because their elected memberships change frequently.

“If the entire future of natural gas development depends on these local political decisions, how can any company invest with any certainty?” Ms. Moreau said.

Because many cities have passed these laws, this case will become very important.

Dryden was not the first place to act against fracking, nor the first place where such bans have been subject to legal challenges. Bans are increasingly common in cities, towns and even counties across the country, including Pittsburgh, which did so in 2010, and Highland Park, N.J., a New York City suburb, where the Borough Council outlawed fracking on Sept. 17.

While some of those votes are more symbolic than substantive — Highland Park was not likely to become a gas-drilling center — in the case of Dryden, the stakes could be high.

“It’s going to decide the future of the oil and gas industry in the state of New York,” said Thomas West, a lawyer for Norse Energy Corporation USA, which has sought to have the ban overturned and will file legal briefs on the appeal on Monday.