NY’s Highest Court to Hear Two Fracking Ban Appeals

On Thursday, the New York Court of Appeals, the state’s highest court, agreed to hear challenges to two municipal bans on fracking.  In one, drilling company Norse Energy is challenging an appellate court’s decision upholding the Town of Dryden’s ban.  And in the other, the challenge is being made by a dairy farmer against the Town of Middlefield’s ban.  In each of the cases the lower court upheld the towns’ bans on the grounds that state mining law doesn’t trump the authority of municipalities to control land use.

The Court of Appeals’ decision in the case will affect at least 50 New York towns that have enacted similar bans on fracking and over 100 that have enacted temporary moratoriums.  Unless there is a request for the cases to be expedited, it is expected that the Court will hear and decide them next Spring.


  • Bill Owen, 8th Sunday 2013 at 6:50 pm


    Hi, nice website, and I appreciate the ability to comment; most (all?) of the legal blogs I watch don’t allow ‘Joe Citizen’ to offer opinions or ask questions. As nearly as I can unravel these cases from the media and from other sources, the basis for the perceived ability to use land use/zoning under home rule comes about because of the argument that some provisions of the Mined Land Reclamation Law (MLRL) section of the Environmental Conservation Law (ECL) and the corresponding section of ECL for Oil, Gas, and Solution Mining Law. (OGSML) are somehow ‘similar’, and thus the MLRL provisions apply – that is, the towns still maintain control over ‘where’, and the state dictates the ‘how’. And the cases were decided in Supreme Court using the precedent of Frew Run Gravel vs. Town of Carrol, which the Court of Appeals (correctly) ruled based on MLRL. That was a mining decision, settled under MLRL. These two cases are related to gas, which seems to me should be decided NOT under a similar preemption clause, but under the preemption clause of the OGSML, which reserves all regulation to the state other than road use and taxation. The appellate decision only compounded the wrong by not even using the Black’s Legal dictionary but rather the alternate definition of regulation from an online dictionary. I thought it is pretty clear through New York’s involvement in the Interstate Compact to Conserve Oil and Gas (ICCOG) and through the words in the OGSML that the legislative intent is to be the sole player in regulating drilling for natural gas – they regulate not only the ‘how’ of drilling (closed loop systems, etc.) but also the where (spacing units, setbacks, etc.) – as the only player they can ensure that they minimize the waste by optimizing wellpad locations, and thereby also protect the correlative rights of the resource holder/landowner. Now I will confess that I am not a lawyer, but it seems pretty clear to me, given all that evidence, that the lower courts have all gotten it wrong.

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