NYS Fracking Standstill

Albany celebrated Earth Day this week by verbally acknowledging that New York State is no closer to permitting fracking today than it was last year.  Senate Environmental Chair Mark Grisanti recognized that a de facto moratorium exists in New York State concerning the natural gas resource, with the Cuomo Administration delaying its decision on how to proceed until more health and environmental studies are complete.

Meanwhile, in an unanimous opinion issued this week, the Third Department Appellate Division for the State of New York Supreme Court ruled that local governments can ban fracking.  In this highly anticipated appellate decision, the Third Department in Norse Energy Corporation v. Town of Dryden affirmed the lower court’s dismissal of a suit brought by Norse Energy Corporation alleging the Town’s ban on fracking was unlawful and preempted by the New York State’s Oil, Gas, and Solution Mining Law (OGSML).   In short, the Third Department found that the OGSML “does not preempt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, nature gas and petroleum within its borders.”   Norse Energy, No. 515227 (3d Dep’t May 2, 2103.)