It ain’t necessarily so

Greenfield Township in Pennsylvania recently ordered a natural gas exploration company to cease operations at a certain well site because drilling is excluded from that location in the township’s zoning ordinance. The action was made possible by a state Supreme Court ruling made in February 2009, Huntley and Huntley vs. the Borough of Oakmont, which established that though state regulations preclude local ordinances in certain aspects of the “how” of drilling—setbacks, permitting and the like—the precedence does not preclude townships from creating zones in which natural gas drilling is forbidden entirely.

The conventional wisdom currently seems to be that New York law lacks this opening, with municipalities powerless to do anything but regulate road usage. But it appears to us that this question may, in fact, still be open to legal determination. If New York law is tested, it might yield a Supreme Court decision similar to that obtained in Pennsylvania’s Huntley and Huntley.

One piece of evidence to this effect is an article in a newsletter by the Albany law firm of Whiteman, Osterman and Hanna LLP ((www.woh.com/img/newsletter/newsletter_4827464625.pdf)). With regard to the Pennsylvania decision, they write, “ECL § 23-0303(2) [the section of New York law specifying the precedence of state over local regulation of oil and gas drilling] contains qualifying language ‘…relating to the regulation of the oil, gas and solution mining industries…’ which is similar to the former provision of ECL § 23-2703 and to section 602 of Pennsylvania’s Oil and Gas Act. A plain meaning interpretation of the qualifying language may support the argument that New York municipalities may regulate the industry outside of the scope of the state’s regulatory program…. It remains unsettled whether municipalities may subject the natural gas well drilling industry to local zoning and land use controls, but there is support for a degree of local control in the analogous New York and Pennsylvania court decisions.” (Emphasis ours.)

Similar considerations are discussed in the January/February 2010 issue of the New York Zoning Law and Practice Report, which also points out a constitutional issue: “Any law that would impair the power of a local government to establish zoning regulations… would be subject to the re-enactment requirement [a New York State constitutional requirement that such laws be enacted during two separate legislative sessions.]” And ECL § 23-0303(2), if it prevents towns from excluding drilling activities from some zones, could be seen as impairing local government powers—but has only been enacted once.

None of this is a slam dunk, but “unsettled” doesn’t mean “no.” Pennsylvania law was also unsettled—and indeed, like New York law, could easily be construed as forbidding zoning that excludes drilling—until the Huntley and Huntley decision. New York law won’t be settled until and unless there’s a similar test case, which means that one or more Marcellus Shale municipalities in New York would need to establish a zoning ordinance that prohibits natural gas drilling in some zone or zones, and be prepared to defend it up to the state Supreme Court.

Expense is obviously a potential problem here. Court cases cost money, something that is not in abundant supply in any of the mostly rural communities lying over the New York State portion of the Marcellus Shale. But there has already been a good deal of organizing among communities throughout the multi-county area, and if all or many of them could be drawn upon to help fund a case of this sort, the taxpayers of the particular municipality engaged in the test case need not be unduly burdened.

Nor do we see this as an anti-drilling versus a pro-drilling issue. It’s about local choice, which is what zoning is all about. Not everybody needs or wants to live in the same kind of environment; zoning allows communities to offer a variety of environments that will fulfill the range of preferences held by their residents. Surely we can at least agree that it should be our town governments, and not the state, that should say what areas of our town should host any given activity, including drilling.

We ran these ideas past a few parties, including state senator John Bonacic’s office, and while no one has yet said “great idea!” we also haven’t encountered any brick walls. For example, Bonacic’s office responded, in part, “The reality is, many State laws relating to zoning powers are subject to more than one interpretation, and the one you cite is no different.” The sensible way to proceed for a municipality that is considering implementing this type of zoning, it went on, would be to request an informal opinion from the state attorney general and/or state controller.

There is no certainty here, but the door seems to be ajar. Maybe it’s time someone set aside the “can’t be done” conventional wisdom and tried giving it a shove.

Also in this issue:

• The myth of the human supremacist

Dr. Punnybone

Punnybone