New York Appellate Court Affirms Enforceability of Local Ban Against Fracking

2687_104008550336_4278131_nIn two key decisions, New York’s Appellate Division, Third Department, affirmed two localities’ bans on fracking.  Specifically, in Cooperstown v. Town of Middlefield and in Norse Energy v. Town of Dryden, the Court reviewed whether the Supreme Court correctly rejected the energy companies’ argument that the localities’ bans on fracking were preempted by New York state law.

In the respective appeals, several interests groups were granted leave to file amici curiae briefs, including environmental groups, towns, and industry.   The Court first recognized that the New York Constitution explicitly authorizes towns and localities to adopt laws for the health and welfare of their citizenry.  The Court then reviewed New York’s legislative history and overall statutory scheme behind its Environmental Conservation Law and found that the local zoning rules were neither expressly nor impliedly preempted.

The Third Department cited affirmatively to  Matter of Frew Run Gravel Prods v. Town of Carroll, a case from New York’s highest Court, which found that a localities’ zoning restrictions on sand and gravel restrictions were not preempted:

“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.”

Notably, there was no dissenting opinion in either opinion and it is unclear whether the appellants will seek leave to appeal to New York’s Court of Appeals.   The decisions are undoubtedly important for various reasons.  More broadly, the decisions may be cited in the future by localities after passing zoning ordinances and bans on various practices, environmental or otherwise, that may arguably conflict with a state statutory scheme.   Specifically as it relates to fracking, the decisions will be touted by localities and environment groups during the interim period of time during which New York is contemplating whether or not to go forward with fracking.

Assuming New York ultimately permits fracking, however, the decisions, practically speaking, may be moot inasmuch as the current proposed regulatory scheme specifically and in no uncertain terms envisions the specific right of towns and localities to make their own determination on fracking.   That regulatory scheme, of course, goes both ways in that there are a growing number of towns along New York’s Southern Tier that are  explicitly approving fracking in the towns.


Leave a Comment