New York Court of Appeals Sustains Anti-hydrofracking Zoning Regulations as Permissible Exercise of Municipal Authority Under Home Rule Law

by Wilson Elser
Contact

In a closely watched decision, a majority of the New York Court of Appeals has held that local anti-hydrofracking zoning rules can trump the state’s pro-energy development oil and gas law. The Court’s decision came in a pair of cases, In the Matter of Mark S. Wallach, as Chapter 7 Trustee for the Norse Energy Corp, USA v. Town of Dryden, et al. and Cooperstown Holstein Corp. v. Town of Middlefield.

Decision
Briefly, the energy company defendants argued that the state’s oil and gas law – known formally as the Oil, Gas and Solution Mining Law (OGSML) – contained a so-called “supersession clause” that preempted all local zoning laws, such as the anti-hydrofracking rules at issue. The municipalities countered that zoning regulations were lawfully enacted pursuant to the home rule authority provided them by the state constitution. The Court sided with the municipalities.

At the outset of its opinion, the Court said that, pursuant to the “home rule” provision, Article IX of the New York State Constitution, the Legislature had enacted the Municipal Home Rule Law empowering municipalities to enact laws promoting the “protection and enhancement of their physical and visual environment.” In keeping with this, the Court noted that the State Legislature has acknowledged the importance of local land use regulation, noting that it “is among the most significant powers and duties granted … to a town government.”

The Court acknowledged that “adoption of zoning ordinances is one of the core powers of local governance.” Nevertheless, the Court also noted that, as a political subdivision of the state, a municipality’s home rule authority could be superseded by legislation under the preemption doctrine. The question here is whether it was, and the Court’s answer was “no.”

The Court began its discussion of the preemption issue by examining the supersession clause in the OGSML, which states, in relevant part:

“For the purposes stated herein, this title shall supersede all other state and local laws relating to the extractive mining industry; provided however that nothing in this title shall be construed to prevent any local government from enacting local zoning ordinances … which impose stricter … standards or requirements than found herein.”

The energy defendants argued that the highlighted language broadly preempted any zoning rules restricting energy developing activities, including hydrofracking. In rejecting this argument, the Court conducted a three-part analysis looking at the plain language of OGSML, the overall legislative scheme and the legislative history. On the plain language point, the Court noted that, “It is instructive to compare OGSML’s supersession clause to other statutes that clearly preempt home rule zoning powers.” (Emphasis supplied) Contrasting the preemption language in these other statutes with the text of OGMSL, the Court stated that these other “provisions often explicitly include zoning in the preemptive language employed by the legislature. (Emphasis supplied)

On the statutory scheme point, the Court reviewed the stated purposes of the OGSML set out in the statute and said, “we perceive nothing in the various provisions of the OGSML indicating that the supersession clause was meant to be broader than required to preempt conflicting local laws directed at the technical operations of the industry.” (Emphasis supplied)

Lastly, on the legislative history point, after reviewing the original OGSML statute and its subsequent amendments, the Court ruled, “Nothing in the legislative history undermines our view that the supersession clause does not interfere with local zoning laws regulating the permissible and prohibited uses of municipal land. Indeed the pertinent passages make no mention of zoning at all, much less evince an intent to take away local land use powers.” (Emphasis supplied)

The Court also rejected as meritless a “fallback position” advanced by the energy defendants – and endorsed by the dissent here – that, even if the OGSML suppression clause does not preempt all zoning regulation, it does prohibit zoning rules that ban hydrofracking.

In conclusion, the Court stated:

“These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York and we pass no judgment on its merits. These are major policy questions for the coordinate branches of government to resolve. The discrete issue before us, and the only one we resolve today, is whether the State Legislature eliminated the home rule capacity of municipalities to pass zoning laws that exclude oil, gas and hydrofracking activities in order to preserve the existing character of their communities. There is no dispute that the legislature has this right.” (Emphasis supplied)

Practice Point
The Dryden/Middlefield decision represents the second ruling by a state supreme court sustaining local zoning regulations banning hydrofracking. The Pennsylvania Supreme Court issued a ruling at the beginning of the year endorsing this same result – albeit on somewhat different grounds. The key passage in the Dryden/Middlefield decision is the closing paragraph where the Court confirms that, notwithstanding its decision, the State Legislature has the absolute right to enact preemptive legislation barring municipalities from regulating hydrofracking. Other states have done just that. Last month, for example, North Carolina passed legislation placing limitations on the powers of municipalities to regulate hydrofracking. The question here is whether there is the political will to do so. Energy companies may view the court’s decision as a “green light” to pressure the Legislature to enact clear preemptive legislation. However, given the deep partisan political divide on this issue and the fact that this is a state-wide election year, the legislature may be more inclined to defer addressing the issue – at least until after this election cycle.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser
Contact
more
less

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.