On December 16, 2013, the Town of Dryden, New York filed its merits brief with the New York Court of Appeals, arguing that state law does not preempt the Town’s local zoning ordinance purporting to ban hydraulic fracturing. To date, less than 1% of the state’s towns and cities have enacted similar zoning laws, but the number is increasing. In May 2013, an intermediate appellate court upheld the Town’s ban against a challenge by Norse Energy Corp. USA, in what was the first appellate ruling on the legality of such zoning laws in New York. The Town’s brief to the state’s high court reiterates the central argument that was unanimously adopted by the four-judge panel in the court below: that the state’s Oil, Gas and Solution Mining Law does not preempt local zoning ordinances because the law lacks a clear statement of legislative intent to roll back local zoning authority.
The Town is represented in the litigation by the environmental group Earthjustice. Norse Energy Corp.’s reply brief is due January 6, 2014. Background on earlier stages of the Dryden litigation can be found here and here. Further news coverage of the high court proceedings can be found here.
The same week the Town filed its brief with the New York’s high court, Norse Energy filed a lawsuit against the State of New York at the trial court level, challenging the open-ended nature and lack of transparency in the state’s ongoing environmental review of hydraulic fracturing.
These hydraulic fracturing lawsuits may soon find additional company on New York’s docket, as landowners have recently threated to challenge New York’s state-wide moratorium on hydraulic fracturing on the grounds that it constitutes an unlawful taking. See New York Landowners Threaten State with Takings Claims over Drilling Moratorium (Nov. 15, 2013).