This week the New York State Court of Appeals upheld the right of municipalities to ban hydraulic fracturing for natural gas within their borders. In Norce Energy Corp. USA v. Town of Dryden and Cooperstown Holstein Corporation v. Town of Middlefield, the Court of Appeals held that towns and other municipalities may ban hydraulic fracturing, also known as fracking, through the use of their zoning laws. The decision by the Court of Appeals is a serious blow to the possibility that fracking will be used in New York State.
The energy companies that sought to overturn the local zoning laws argued that they had been preempted by New York State’s Oil, Gas and Solution Mining Law. That statute specifically states that it “supersede[s] all local laws or ordinances relating to the regulations of the oil, gas and solution mining industries”. The Court of Appeals rejected the idea that this law superseded local zoning laws banning fracking based on prior decisions which had interpreted a similar statute as only preempting local laws that dealt with the operation of mining activity, not the location.
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