ALBANY, NY — In an important victory for residents opposed to hydraulic fracturing in New York, the Third Appellate Division in Albany on May 3 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 enfor- cing zoning that would prohibit drilling, but the court said essentially what other legal experts have said in the past: muni- cipalities 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 when the decision was handed down. “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.”
The Joint Landowners Coalition of New York (JLCNY) issued a statement saying, “our 77,000 landowners are disappointed that the Appellate Division affirmed the decisions in the Middlefield and Dryden cases. These decisions continue to wreak havoc in our towns, displacing most town business with issues that should be decided at the state level. Local municipalities are simply not equipped to decide issues affecting our state and national interests in producing clean domestic energy. New York cannot have a ‘not in my back yard approach’ to energy development.”
Norse Energy has said it will begin the process to appeal the decision to the state’s highest court. JCLNY wrote, “It is clear that only the Court of Appeals can resolve this conflict since the Appellate Division’s decision relies upon the Court of Appeals decision interpreting the mining law in (a case called) Frew Run.”
But because the appellate level judges ruled four to zero, and this was not a case where the court overturned a lower court ruling, some legal observers believe it is quite possible that the Court of Appeals will decline to hear the case.