Update! – New York State Court of Appeals Takes On Fracking Ban Case

In what will be a precedent-setting decision of national importance, yesterday the New York State Court of Appeals agreed to hear Norse Energy’s appeal of the Third Department’s decision upholding the Town of Dryden’s municipal ban on hydraulic fracturing for natural gas extraction. The Third Department and lower State Supreme Court both upheld the Town’s ban on hydraulic fracturing on the grounds that a full blown ban on an activity does not constitute “regulation” for preemption purposes under New York State’s Oil, Gas and Solutions Mining Law. The validity of the Third Department’s reasoning, and the Town’s underlying authority, will be reviewed by the Court of Appeals sometime this fall.

According to FracTracker, some 50 municipalities in New York State have banned hydraulic fracturing in the last few years, and more than 100 municipalities have enacted moratoriums on the controversial form of natural gas drilling. Especially given the absence of any regulatory initiative by New York State, or direction from the Cuomo Administration, the high court’s review of the Town of Dryden’s ban will be more than legally significant – indeed, the Court of Appeal’s expected decision may determine a crucial part of New York State’s future energy platform.