New York Court of Appeals: Local Governments Can Ban Fracking Through Zoning Ordinances

July 21st, 2014

The New York Court of Appeals issued a significant opinion finding that local governments can regulate–ban–fracking through their zoning authority. This continues a trend of governments turning to the common law to accomplish many environmental ends that traditional were beyond the scope of local governments–such as efforts to regulate climate change to nuisance law. There are other similar cases pending in Pennsylvania. Stay tuned.

Prof John Nolson has a summary:

In one of the most anxiously awaited New York land use decisions in recent memory, the state’s highest court held today that local governments have the power to regulate hydrofracking  under their authority to enact zoning ordinances.  Both the towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their jurisdictions.  The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, the statutory scheme, and its legislative history, the court concluded that the legislature did not expressly or by implication preempt the power of localities in New York to regulate land use. Preempted, under the OGSML, in the court’s view, was the power to regulate the details, procedures or operations of the oil and gas industry, not matters normally associated with land use regulation.

The Court of Appeals in Dryden and Middlefield rested its decision on both the Municipal Home Rule Law (MHRL) and the Town Law.  The MHRL contains a seldom-cited provision granting authority to local governments, including towns, cities, and villages, to protect and enhance their physical and visual environments. The Town Law is New York’s version of the Standard Zoning Enabling Act, which was the model for most state statutes that delegate zoning authority to local governments. The court pointed to the breadth of municipal zoning powers to provide for the development of a balanced, cohesive community and to the notion that the regulation of land use through the adoption of zoning is one of the core powers of local governments. ….

The cases, Nos. 130 and 131, are available on the Court of Appeals website, under today’s date.

More from Inverse Condemnation Blog:

A not entirely convincing rationale in our view, but given the prior decision’s interpretation of the same statutory language, the result couldn’t have come as much of a surprise. The court acknowleged the zoning laws “will undeniably have an impact on oil and gas enterprises” (ya think?) but this is merely “incidental control” that is a byproduct of a municipality’s power to zone land. Again, not very convincing, since a total ban on a practice — even if accomplished pursuant to a municipality’s zoning power — sure looks to this non-New Yorker like an “ordiannce relating to” oil and gas.  Even that argument, adopted by the dissent, was rejected the court:

As a fallback position, Norse and CHC suggest that, even if the OGSML’s supersession clause does not preempt alllocal zoning laws, it should be interpreted as preempting zoning ordinances, like the two here, that completely prohibit hydrofracking. In their view, supported by the dissent, it may be valid to restrict oil and gas operations from certain residential areas of a town — much like the zoning law in Frew Run — but an outright ban goes too far and cannot be seen as anything but a local law that regulates the oil and gas industry, thereby running afoul of the supersession clause. But this contention is foreclosed by Matter of Gernatt Asphalt Prods. vTown of Sardinia (87 NY2d 668 [1996]), our decision following Frew Run.

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