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Fracking bans ok in New York towns; Court rules in Dryden, Middlefield

By Fritz Mayer
May 2, 2013

ALBANY, NY — In an important victory for residents opposed to hydraulic fracturing in New York, the Third Appellate Division of the New York Supreme Court in Albany on May 2 ruled that municipalities have the right to adopt zoning laws that prohibit fracking.

In the decision the court wrote, “We hold that (current law) does not preempt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.”

Drilling advocates had argued that the Environmental Conservation Law prohibits local municipalities from enforcing zoning that would prohibit drilling, but the court said essentially what other legal experts have said in the past: municipalities may not tell drilling companies how they should drill, but they may create zoning that specifies where it may or may not happen.

The court wrote, “The zoning ordinance at issue… does not seek to regulate the details or procedure of the oil, gas and solution mining industries. Rather, it simply establishes permissible and prohibited uses of land within the town for the purpose of regulating land generally… While the town's exercise of its right to regulate land use through zoning will inevitably have an incidental effect upon the oil, gas and solution mining industries, we conclude that zoning ordinances are not the type of regulatory provision that the Legislature intended to be preempted….”

The case is Norse Energy Corporation v Town of Dryden, et al.

“I’m proud to represent the Town of Dryden and I’m especially proud today,” said Dryden supervisor Mary Ann Sumner. “We stood up for what we knew was right. And we won. The people who live here and know the town best should be the ones deciding how our land is used, not some executive in a corporate office park thousands of miles away.”

Deborah Goldberg, an attorney with the public interest law organization, Earthjustice, represented the Town of Dryden in the appeal. “This victory stands as an inspiration for communities seeking to protect themselves from the consequences of the fracking-enabled oil and gas drilling rush,” Goldberg said. “The oil and gas industry largely has been deregulated at the federal level. While state officials struggle with the decision whether to permit fracking, local officials have stepped in to fill the gap. Today’s ruling signals to local officials that they are indeed on solid legal ground.”

In a related decision, the court also upheld the drilling ban in the Town of Middlefield.


Dryden decision:

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 2, 2013 515227
________________________________
In the Matter of NORSE ENERGY
CORPORATION USA,
Appellant-
Respondent,
v
TOWN OF DRYDEN et al., OPINION AND ORDER
Respondents.
DRYDEN RESOURCES AWARENESS
COALITION,
Proposed Intervenor- Respondent- Appellant.
________________________________
Calendar Date: March 21, 2013
Before: Peters, P.J., Stein, Spain and Garry, JJ.
__________
The West Firm, PLLC, Albany (Thomas S. West of counsel),
for appellant-respondent.

Knauf Shaw, LLP, Rochester (Alan J. Knauf of counsel), for
proposed intervenor-respondent-appellant.

Deborah Goldberg, Earthjustice, New York City, for Town of
Dryden and another, respondents.

Cynthia Feathers, Glens Falls, for New York Farm Bureau,
amicus curiae.

-2- 515227

Sidley Austin, LLP, Washington, D.C. (Joseph R. Guerra of
counsel), for American Petroleum Institute and others, amici
curiae.

Levene, Gouldin & Thompson, LLP, Binghamton (Scott R.
Kurkoski of counsel) for Business Council of New York State, Inc.
and others, amici curiae.

Whiteman, Osterman & Hanna, LLP, Albany (John J. Henry of
counsel), for Town of Ulysses and others, amici curiae.
Jordan A. Lesser, New York State Assembly, Albany, for
Member of the Assembly Barbara Lifton, amicus curiae.

Susan J. Kraham, Morningside Heights Legal Services, Inc.,
New York City, for Vicki Been and others, amici curiae.
Nancy S. Marks, Natural Resources Defense Council, New York
City (Katherine Sinding of counsel), for Catskill Mountainkeeper
and others, amici curiae.

Tooher & Barone LLP, Albany (John L. Barone of counsel),
for A&E Management & Contracting, Inc., and others, amici curiae.
__________
Peters, P.J.

Cross appeals from a judgment of the Supreme Court (Rumsey,
J.), entered February 22, 2012 in Tompkins County, which, in a
proceeding pursuant to CPLR article 78 and action for declaratory
judgment, among other things, partially granted respondents'
motion for summary judgment declaring that certain amendments to
the Town of Dryden zoning ordinance are not preempted by the Oil,
Gas and Solution Mining Law.

In August 2011, the zoning ordinance of respondent Town of
Dryden (hereinafter the Town) was amended to ban all activities
related to the exploration for, and the production or storage of,
natural gas and petroleum. The amendment occurred in the midst
of growing local concern over the proposed use of high volume
hydraulic fracturing, commonly known as "hydrofracking," to
recover natural gas from underground shale deposits.

Petitioner's predecessor in interest, Anschutz Exploration
Corporation, a driller and developer of oil and natural gas wells
that owned leases covering approximately 22,200 acres of land in
the Town of Dryden, Tompkins County, thereafter commenced this
combined proceeding pursuant to CPLR article 78 and action for
declaratory judgment seeking invalidation of the zoning amendment
on the ground that it was preempted by the Oil, Gas and Solution
Mining Law (see generally ECL 23-0301 et seq. [hereinafter
OGSML]

Following joinder of issue, respondents moved for
summary judgment declaring that the OGSML does not preempt the
zoning ordinance amendment. Anschutz opposed the motion and
urged Supreme Court to grant summary judgment in its favor.
Subsequently, Dryden Resources Awareness Coalition
(hereinafter DRAC), an association of approximately 71 residents
and landowners in the Town formed "to educate and protect the
Dryden community from the impacts and hazards associated with
hydraulic fracturing," moved to intervene and defend the zoning
ordinance. Both respondents and petitioner opposed DRAC's
motion. Supreme Court denied DRAC's motion and granted summary
judgment to respondents, concluding that, with the exception of a
1 Hydrofracking involves a process by which a mixture of
fresh water and chemical additives are pumped under high pressure
into shale formations beneath the ground. This process is
typically accomplished by drilling multiple horizontal wells out
from a vertical well. Once in the shale, the mixture disturbs,
among other things, deposits of methane gas and is then returned
to the surface, where it is stored or transported in order to
retrieve the methane. Currently, there is significant concern
regarding the environmental effects of hydrofracking,
particularly the risk of groundwater contamination.

During the pendency of this appeal, Anschutz assigned
its interest in certain oil and gas leases in the Town to
petitioner, who was thereafter substituted in the proceeding by
order of this Court (see CPLR 1018, 1021).

Provision invalidating permits issued by other local or state
agencies, the amendment to the zoning ordinance was not preempted
by the OGSML.3 Petitioner and DRAC now appeal.

Respondents do not challenge Supreme Court's determination with regard to the permit provision.

Several interested groups were granted permission to
file amici curiae briefs on this appeal and/or the appeal in
Cooperstown Holstein Corp. v Town of Middlefield (___ AD3d ___
[decided herewith]), which address the same question of
preemption at issue here. These groups include (1) New York Farm
Bureau (see 2012 NY Slip Op 89400[U] [2012]; 2012 NY Slip Op
89414[U] [2012]); (2) American Petroleum Institute, Chamber of
Commerce of the United States of America and Independent Oil and
Gas Association of New York (see 2012 NY Slip Op 89955[U] [2012];
2012 NY Slip Op 89959[U] [2012]); (3) Business Council of New
York State, Inc., Clean Growth Now, National Association of
Royalty Owners, NARO-NY and Joint Landowners Coalition of New
York, Inc. (see 2012 NY Slip Op 90485[U] [2012]; 2012 NY Slip Op
90486[U] [2012]); (4) Town of Ulysses, City of Ithaca, City of
Oneonta, Town of Alfred, Town of Ancram, Town of Camillus, Town
of Carlisle, Town of Caroline, Town of Chatham, Town of
Claverack, Town of Copake, Town of Danby, Town of Dewitt, Town of
Elbridge, Town of Enfield, Town of Geneva, Town of Gorham, Town
of Highland, Town of Ithaca, Town of Jerusalem, Town of Kirkland,
Town of Lansing, Town of Livingston, Town of Lumberland, Town of
Marcellus, Town of Meredith, Town of Middlesex, Town of
Middletown, Town of Milo, Town of New Hartford, Town of Mendon,
Town of Otisco, Town of Otsego, Town of Owasco, Town of Potsdam,
Town of Rush, Town of Sennett, Town of Skaneateles, Town of
Springfield, Town of Summit, Town of Tusten, Town of Wales, Town
of Westmoreland, Town of Woodstock, Village of Cayuga Heights,
Village of Dundee, Village of Freeville, Village of Honeoye
Falls, Village of Prospect, Village of Saugerties, Village of
Sharon Springs, Village of Trumansburg, Association of Towns of
the State of New York, New York Conference of Mayors and New York
Planning Federation (see 2012 NY Slip Op 91270[U] [2012]; 2012 NY
Slip Op 91275[U] [2012]); (5) Member of Assembly Barbara Lifton,
125th Assembly District (see 2012 NY Slip Op 95156[U] [2012]);
-5- 515227

I. INTERVENTION

As a preliminary matter, we address Supreme Court's denial
of DRAC's motion to intervene. As the court dismissed, as
improper, that part of the petition/complaint seeking relief
under CPLR article 78, DRAC was required to establish entitlement
to intervention pursuant to CPLR article 10. "While the only
requirement for obtaining an order permitting intervention via
[CPLR 1003] is the existence of a common question of law or fact,
the resolution of such a motion is nevertheless a matter of
discretion" (Matter of Pier v Board of Assessment Review of Town
of Niskayuna, 209 AD2d 788, 789 [1994] [citation omitted]; see
Kripke v Benedictine Hosp., 255 AD2d 725, 728 [1998]).

Here, although members of DRAC submitted affidavits
identifying effects that hydrofracking may have on their daily
(6) Professors Vicki Been, Richard Briffault, Nestor Davidson,
Clayton Gillette, Roderick M. Hills Jr., John Nolon, Ashira
Ostrow, Patricia Salkin, Christopher Serkin and Stewart Sterk
(see 2012 NY Slip Op 95153[U] [2012]; 2012 NY Slip Op 95157[U]
[2012]); (7) Catskill Mountainkeeper, Delaware Riverkeeper
Network, Gas Drilling Awareness for Cortland County, The Natural
Resources Defense Council, Inc., Otsego 2000, Inc., The
Preservation League of New York State, Riverkeeper Inc., Theodore
Gordon Flyfishers, Inc. and Vestal Residents for Safe Energy (see
2012 NY Slip Op 95155[U] [2012]; 2012 NY Slip Op 95158[U]
[2012]); and (8) A&E Management & Contracting, Inc., Arm-of-the-
Sea Production, Inc., Beaverkill Angler, LLC, Bravo Original
Ceramic Designs, Brewery Ommegang, Catherine Cottages, Cleinman
Performance Partners, Inc., Cooperstown Cheese Company, Dutch Ale
House, Inc., Dutch Girl Cheese, Fairytale Farm, Gold
Petals/Homescapes Inc., Hudson Valley Dessert Company, Hunt
Country Vineyards, LLC, Lucky Chocolates LLC, Lydia Afia,
Miriam's Well, Inc., Northeast Organic Farming Association of New
York, Inc., Our Bookshop, Promo-to-go LLC, Park Slope Food Coop,
Inc., Partition Street Wine Shop, Savor Gracie, Inc., Silver
Thread Vineyard, LLC, Slope Farms, The Dirt Diva and The Inn at
Cooperstown (see 2012 NY Slip Op 95154[U] [2012]; 2012 NY Slip Op
95159[U] [2012]).

lives, these claimed impacts were largely speculative and failed
to demonstrate a substantial interest in the outcome of the
action different from other residents of the Town. Further, as
noted by Supreme Court, the Town is the preeminent party in
defending the validity of the zoning ordinance amendment which it
enacted (cf. Matter of Rent Stabilization Assn. of N.Y. City v
New York State Div. of Hous. & Community Renewal, 252 AD2d 111,
115 [1998]). Under the circumstances, we find no abuse of
discretion and, like Supreme Court, grant DRAC amicus curie
status and consider its arguments in that context (see Matter of
Pace-O-Matic, Inc. v New York State Liq. Auth., 72 AD3d 1144,
1145 [2010]; Quality Aggregates v Century Concrete Corp., 213
AD2d 919, 920-921 [1995]).

II. PREEMPTION
We now turn to the question of whether OGSML preempts the
amendment to the Town's zoning ordinance banning all activities
related to the exploration for, and the production or storage of,
natural gas and petroleum. The NY Constitution grants "every
local government [the] power to adopt and amend local laws not
inconsistent with the provisions of [the] constitution or any
general law relating to its property, affairs or government" (NY
Const, art IX, § 2 [c]; see Anonymous v City of Rochester, 13
NY3d 35, 51 [2009] [Graffeo, J., concurring]; People v De Jesus,
54 NY2d 465, 468 [1981]). To implement this express grant of
authority to local governments, the Legislature enacted a series
of statutes establishing a wide range of local powers (see
generally Kamhi v Town of Yorktown, 74 NY2d 423, 428-429 [1989]).
Among the powers delegated to local governments is the authority
to regulate the use of land through the enactment of zoning laws
(see Municipal Home Rule Law § 10 [1] [ii] [a] [11]; Statute of
Local Government § 10 [6], [7]; Town Law § 261; Matter of Kamhi v
Planning Bd. of Town of Yorktown, 59 NY2d 385, 389 [1983];
Riegert Apts. Corp. v Planning Bd. of Town of Clarkstown, 57 NY2d
206, 209 [1982]). As the Court of Appeals has emphasized, "[o]ne
of the most significant functions of a local government is to
foster productive land use within its borders by enacting zoning
ordinances" (DJL Rest. Corp. v City of New York, 96 NY2d 91, 96
[2001]; see Little Joseph Realty v Town of Babylon, 41 NY2d 738,
745 [1977]; Udell v Haas, 21 NY2d 463, 469 [1968]; see also
Trustees of Union Coll. in Town of Schenectady in State of N.Y. v
Members of Schenectady City Council, 91 NY2d 161, 165 [1997]).
The doctrine of preemption, however, "represents a
fundamental limitation on home rule powers" (Albany Area Bldrs.
Assn. v Town of Guilderland, 74 NY2d 372, 377 [1989]; accord
Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100
NY2d 395, 400 [2003]). The Legislature may expressly state its
intent to preempt, or it may do so by implication (see Matter of
Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d at 400;
DJL Rest. Corp. v City of New York, 96 NY2d at 95). Where, as
here, a statute contains an express preemption clause, its effect
"turns on the proper construction of [the] statutory provision"
(Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126,
131 [1987]). The primary consideration in matters of statutory
interpretation "is to 'ascertain and give effect to the intention
of the Legislature'" (Riley v County of Broome, 95 NY2d 455, 463
[2000], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 92
[a]; see Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286
[2009]). Such efforts begin with an examination of the statutory
text itself (see Yatauro v Mangano, 17 NY3d 420, 426 [2011];
Majewski v Broadalbin–Perth Cent. School Dist., 91 NY2d 577, 583
[1998]).

A. EXPRESS PREEMPTION
The supersession clause in the OGSML provides that "[t]he
provisions of [ECL article 23] 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 [RPTL]" (ECL 23-0303 [2]). Thus, the plain
language of this provision prohibits municipalities from enacting
laws or ordinances "relating to the regulation of the oil, gas
and solution mining industries" (ECL 23-0303 [2] [emphasis
added]). As the OGSML does not define the word "regulation," we
must give this word its ordinary and natural meaning (see People
v Quinto, 18 NY3d 409, 417 [2012]; Matter of Manhattan Pizza Hut
v New York State Human Rights Appeal Bd., 51 NY2d 506, 511
[1980]). Regulation is commonly defined as "an authoritative
rule dealing with details or procedure" (Merriam-Webster On-line
Dictionary, http://www.merriam-webster.com/dictionary/
regulation). The zoning ordinance at issue, however, does not
seek to regulate the details or procedure of the oil, gas and
solution mining industries. Rather, it simply establishes
permissible and prohibited uses of land within the Town for the
purpose of regulating land generally (see Matter of Frew Run
Gravel Prods. v Town of Carroll, 71 NY2d at 131 [stating that
"[t]he purpose of a municipal zoning ordinance in dividing a
governmental area into districts and establishing uses to be
permitted within the districts is to regulate land use
generally"]). While the Town's exercise of its right to regulate
land use through zoning will inevitably have an incidental effect
upon the oil, gas and solution mining industries, we conclude
that zoning ordinances are not the type of regulatory provision
that the Legislature intended to be preempted by the OGSML
(see DJL Restaurant Corp. v City of New York, 96 NY2d at 97;
Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668,
681-682 [1996]; Matter of Hunt Bros. v Glennon, 81 NY2d 906, 908-
910 [1993]; Matter of Frew Run Gravel Prods. v Town of Carroll,
71 NY2d at 131).

The legislative history of ECL 23-0303 (2), specifically,
and the OGSML, generally, support this determination. The
statutory scheme governing oil and gas was added to the former
Conservation Law in 1963 (see L 1963, ch 959), with the
Conservation Department5 being charged with its administration
(see former Conservation Law § 72; see also Mem of Conservation
Dept, Bill Jacket, L 1963, ch 959). The statute's official
policy was: "to foster, encourage and promote the
development, production and utilization of natural resources of oil and gas . . . in such a manner as will prevent waste; to
authorize and to provide for the operation
and development of oil and gas properties in such a manner that a greater ultimate. The current Department of Environmental Conservation was established in 1970 (see L 1970, ch 140).
recovery of oil and gas may be had, and that the correlative rights of all owners and the rights of all persons including
landowners and the general public may be fully protected" (former Conservation Law § 70; L 1963, ch 959).
"Waste" was defined in technical terms as, among other things,
"the inefficient, excessive or improper use of, or the
unnecessary dissipation of reservoir energy," or "the locating,
spacing, drilling, equipping, operating, or producing of any oil
or gas well or wells in a manner which causes or tends to cause
reduction in the quantity of oil or gas ultimately recoverable
from a pool under prudent and proper operations" (former
Conservation Law § 71 [1]; L 1963, ch 959). Notably, the
provisions of the enactment focus on matters that are regulatory
in nature, such as well spacing, delineation of pools and
procedures for obtaining permits. They do not address any
traditional land use issues that would otherwise be the subject
of a local municipality's zoning authority (see L 1963, ch 959).
Amendments to the ECL in 1978 modified the policy of the
OGSML, replacing the phrase "to foster, encourage and promote the
development, production and utilization of natural resources of
oil and gas . . . in such a manner as will prevent waste"
(L 1963, ch 959, § 1 [emphasis added]) with "to regulate the
development, production and utilization of natural resources of
oil and gas . . . in such a manner as will prevent waste" (L
1978, ch 396 [emphasis added]). Notably, the 1978 legislation
simultaneously amended the state's energy policy to, among other
things, "foster, encourage and promote the prudent development
and wise use of all indigenous state energy resources including,
but not limited to, on-shore oil and natural gas, off-shore oil
and natural gas [and] natural gas from Devonian shale formations"
(L 1978, ch 396, § 2 [emphasis added]; see Energy Law § 3-101
[5]). By these amendments, the Legislature clearly acknowledged
that promotion and regulation were considered separate and
distinct activities, as they transferred the promotion of energy
to the Energy Office while continuing regulation of the oil, gas
and solution mining industries within the Department of
Environmental Conservation (hereinafter DEC).

In 1981, the preemption clause at issue here was enacted as
part of an act that amended the Finance Law, the ECL, the RPTL,
the Agriculture and Markets Law and the Tax Law (see L 1981, ch
846).6 Significantly, the purpose of the 1981 amendments to the
ECL was "to promot[e] the development of oil and gas resources in
New York and regulat[e] the activity of the industry" (L 1981, ch
846 [emphasis added]; see Sponsor's Mem, Bill Jacket, L 1981, ch
846, 1981 NY Legis Ann at 448). This purpose was to be achieved
by, among other things, "establishing new fees to fund additional
regulatory personnel for the industry and to provide a fund to
pay for past and future problems which resulted [from] the
industry's activities [and] establish[ing] a uniform method of
real property taxation for oil and natural gas lands" (Sponsor's
Mem, Bill Jacket, L 1981, ch 846, 1981 NY Legis Ann at 448). The
sponsor's memorandum supporting the bill stated that the oil, gas
and mining industry "will benefit from the expeditious handling
of permits and improved regulation," observing that "the recent
growth of drilling in the State has exceeded the capacity of
[DEC] to effectively regulate and service the industry"
(Sponsor's Mem, Bill Jacket, L 1981, ch 846, 1981 NY Legis Ann at
448). Explaining that DEC was unable to fulfill its "regulatory
responsibilities" with its existing funding and powers
(Governor's Approval Mem, Bill Jacket, L 1981, ch 846, 1981 NY
Legis Ann at 448), the Governor's memorandum approving the 1981
bill confirms that the amendments would provide DEC with funding
for its "updated regulatory program" as well as "additional
enforcement powers necessary to enable it to provide for the
efficient, equitable and environmentally safe development of the
State's oil and gas resources" (Governor's Approval Mem, Bill
Jacket, L 1981, ch 846, 1981 NY Legis Ann at 449).

From the legislative history of the OGSML and, in
particular, the 1981 amendments, it is evident that the
Legislature's intention was to insure uniform statewide standards
and procedures with respect to the technical operational
activities of the oil, gas and mining industries in an effort to
6 Prior to that time, ECL 23-0303 consisted of only the
language now contained in ECL 23-0303 (1) (see L 1981, ch 846
§ 4; L 1972, ch 664, § 2). increase efficiency while minimizing waste, and that the supersession provision was enacted to eliminate inconsistent local regulation that impeded that goal. We find nothing in the language, statutory scheme or legislative history of the statute indicating an intention to usurp the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions. In the absence of a clear expression of legislative intent to preempt local control over land use, we decline to give the statute such a construction (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d at 682; Matter of Frew Run Gravel Prods. v Town
of Carroll, 71 NY2d at 134).7 By construing ECL 23-0303 (2) as
preempting only local legislation regulating the actual
operation, process and details of the oil, gas and solution
mining industries, "the statutes may be harmonized, thus avoiding
any abridgment of [a] town's powers to regulate land use through
zoning powers expressly delegated in the Statute of Local
Governments . . . and [the] Town Law" (Matter of Frew Run Gravel
Prods. v Town of Carroll, 71 NY2d at 134).

Decisional law interpreting a similar supersession
provision contained in the Mined Land Reclamation Law (see ECL
23-2701 et seq. [hereinafter MLRL]) further supports our
determination that the Legislature did not intend for the OGSML
to preempt the zoning authority of municipalities.8 In Matter of
Frew Run Gravel Prods. v Town of Carroll (71 NY2d at 133-134),
the Court of Appeals held that the MLRL did not preempt a town's
7 Indeed, in other contexts, the Legislature has clearly
evinced its intent to preempt local zoning authority within the
express text of the statute. For example, in ECL 27-1107 – the
same statute at issue here – the Legislature expressly prohibited
local municipalities from requiring "any approval, consent,
permit, certificate or other condition, including conformity with
local zoning or land use laws and ordinances," concerning the
operation of hazardous waste facilities (emphasis added).

Despite petitioner's assertions to the contrary, we fail
to find any meaningful distinction between the language of the
supersession provision of the OGSML and that of the MLRL.
zoning law which established a zoning district where sand and
gravel operations were not a permitted use. At that time, the
MLRL contained a supersession provision providing that:
"this title shall supersede all other state and local laws relating to the extractive mining industry; provided, however, that nothing in this title shall be construed to prevent any local government from enacting local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements than those found herein" (ECL 23-2703)

Construing the language "relating to the extractive mining
industry" according to its plain meaning, the Court found that
the zoning law was not preempted by the MLRL's supersession
provision as it was related to "an entirely different subject
matter and purpose: i.e., regulating the location, construction
and use of buildings, structures, and the use of land in the
Town" (Matter of Frew Run Gravel Prods. v Town of Carroll, 71
NY2d at 131 [internal quotation marks and citation omitted]). In
limiting supersession to those laws "relating to the extractive
mining industry," the Court concluded, the Legislature intended
to preempt only "[l]ocal regulations dealing with the actual
operation and process of mining" (id. at 133 [emphasis added]).
The Court explained that local zoning ordinances affect the
mining industry only in incidental ways and, notably, do not
frustrate the MLRL's stated purpose "to foster a healthy, growing
mining industry" (id. at 132 [internal quotation marks and
citation omitted]). Here, too, the amendment to the Town's
zoning ordinance – enacted pursuant to its constitutional and
statutory authority to impose land use regulations – while
incidentally impacting the oil, gas, and solution mining
industries, does not conflict with the state's interest in
establishing uniform procedures for the operational activities of
these industries.

Thus, based upon the plain meaning of the language
contained in the supersession clause, the relevant legislative
history and the purpose and policy of OGSML as a whole, and
mindful of the interpretation accorded to MLRL's similar
supersession provision, we find that ECL 23-0303 (2) does not
serve to preempt a municipality's authority to enact a local
zoning ordinance prohibiting oil, gas and solution mining or
drilling within its borders.

B. IMPLIED PREEMPTION
Petitioner further argues that, even if the amendment to
the Town's zoning ordinance is not expressly preempted by the
OGSML, it is nevertheless invalid under principles of implied
preemption. While the existence of an express preemption clause
in a statute supports a reasonable inference that the Legislature
did not intend to preempt other matters, it does not, as
respondents suggest, entirely foreclose any possibility of
9 The Court of Appeals confirmed the distinction between
zoning ordinances and local ordinances that dictate the manner
and method of mining operations nearly a decade later in Matter
of Gernatt Asphalt Prods. v Town of Sardinia (87 NY2d 668,
681-682 [1996]).

In concluding that the MLRL did not preempt a town's authority to determine, by way of a zoning ordinance, that mining would no longer be a permitted use of land within the town, the Court expressly rejected the mining company's argument – similar to that asserted by petitioner here – that because the MLRL's policy is to "foster[] and promot[e] the mining industry
in this State" (id. at 681), a municipality is obligated to
permit the extraction of those natural resources somewhere within
its borders (id. at 681-682). In so concluding, the Court
explained that "[a] municipality is not obliged to permit the
exploitation of any and all natural resources within the town as
a permitted use if limiting that use is a reasonable exercise of
its police powers to prevent damage to the rights of others and
to promote the interests of the community as a whole" (id. at
684).

implied preemption (see Freightliner Corp. v Myrick, 514 US 280,
287-288 [1995]; Drattel v Toyota Motor Corp., 92 NY2d 35, 48-49
[1998]; Matter of Office of Attorney Gen. of State of N.Y., 269
AD2d 1, 7 [2000]). Petitioner's implied preemption argument must
fail, however, because the zoning amendment neither conflicts
with the language nor the policy of the OGSML.
Under the doctrine of conflict preemption, a "local
government . . . may not exercise its police power by adopting a
local law inconsistent with constitutional or general law" (New
York State Club Assn. v City of New York, 69 NY2d 211, 217
[1987], affd 487 US 1 [1988]; see DJL Rest. Corp. v City of New
York, 96 NY2d at 95; Jancyn Mfg. Corp. v County of Suffolk, 71
NY2d 91, 97 [1987]). Citing to specific provisions of the OGSML
that address well spacing, petitioner claims that the OGSML
directs "where" drilling is to occur in order to ensure that
wells are drilled and spaced in a manner that maximizes resource
recovery and minimizes waste, and that this directive cannot be
complied with if municipalities are permitted to enact zoning
ordinances banning drilling within their jurisdictions. The
provisions that petitioner points to, however, relate to the
details and procedures of well spacing by drilling operators (see
e.g. ECL 23-0101 [20] [c]; 23-0503 [2]) and do not address
traditional land use considerations, such as proximity to
nonindustrial districts, compatibility with neighboring land
uses, and noise and air pollution. As we noted, the well-spacing
provisions of the OGSML concern technical, operational aspects of
drilling and are separate and distinct from a municipality's
zoning authority, such that the two do not conflict, but rather,
may harmoniously coexist; the zoning law will dictate in which,
if any, districts drilling may occur, while the OGSML instructs
operators as to the proper spacing of the units within those
districts in order to prevent waste.

Nor are we persuaded that municipal zoning ordinances that
effect a ban on drilling conflict with the policies of the OGSML.
There is nothing in the statute or its legislative history
suggesting, as petitioner does, that it is the policy of this
state to "maximize recovery" of oil and gas resources at the
expense of municipal land use decision making. While the statute
seeks to avoid waste – that is, "the inefficient, excessive or
improper use of, or the unnecessary dissipation of reservoir
energy" and the "the locating, spacing, drilling, equipping,
operating, or producing of any oil or gas well or wells in a
manner which causes or tends to cause reduction in the quantity
of oil or gas ultimately recoverable from a pool under prudent
and proper operations" (ECL 23-0101 [20] [b], [c]; former
Conservation Law § 71 [1]; L 1963, ch 959) – this does not equate
to an intention to require oil and gas drilling operations to
occur in each and every location where such resource is present,
regardless of the land uses existing in that locale. Indeed, the
policy of the OGSML explicitly seeks to protect the rights of
"all persons including landowners and the general public" – not
just the owners of oil and gas properties, such as petitioner
(former Conservation Law § 70; L 1963, ch 959), a goal which is
realized when individual municipalities can determine whether
drilling activities are appropriate for their respective
communities. Accordingly, respondents' decision to amend the
Town's zoning ordinance to prohibit the activity of hydrofracking
does not conflict with the Legislature's intent to ensure that,
where oil or gas drilling occurs, the operations are as efficient
and effective as possible.

Thus, we hold that the OGSML does not preempt, either expressly or impliedly, a municipality's power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.

Stein, Spain and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court