Environmental and Energy: Hydraulic Fracturing: Courts and Localities Act Where New York State Fears To Tread (7/14)

by Bond Schoeneck & King PLLC

New York Court of Appeals Upholds Right of Localities to Ban Hydraulic Fracturing

In an opinion issued on June 24, 2014, the New York Court of Appeals upheld the zoning laws adopted by the Towns of Dryden and Middlefield to ban oil and gas production activities, including hydraulic fracturing, within their boundaries. The Court concluded that the clause in the Oil, Gas and Solution Mining Law (OGSML) granting the State the exclusive right to regulate mining operations does not preempt the home rule authority vested in municipalities to regulate land use. In other words, local authorities cannot regulate "how" mining is performed, but they can regulate "where" it occurs.

This Court of Appeals decision may prompt more localities to adopt similar legislation to prohibit hydraulic fracturing, commonly referred to as hydrofracking. This decision, coupled with the State’s significant delays in finalizing a permitting program for hydrofracking, will likely be perceived by the oil and gas industry as the functional equivalent of a state-wide prohibition on hydrofracking. An open question is whether the industry will focus its efforts on the State Legislature for an amendment to the OGSML that will clearly preempt home rule zoning powers.

At issue in the matters before the Court was an amendment to the zoning law adopted by Dryden in August 2011 to specify that all oil and gas exploration, extraction and storage activities were prohibited in the Town. The amendment also invalidated any oil and gas permit issued by a state or federal agency. The New York Supreme Court declared the amendment valid with one exception – it struck down the provision invalidating state and federal permits. The Appellate Division affirmed.

The Town of Middlefield amended its master plan to adopt a zoning provision classifying a range of heavy industrial uses, including oil, gas and solution mining and drilling, as prohibited uses.

The actions to set aside these zoning laws contended that they were preempted by the supersession provision in the OGSML. At the heart of the controversy is the following section of the OGSML:

"The provisions of this article [i.e., the OGSML] shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law" (ECL 23-0303 [2] [emphasis added]).

The appellants, Norse Energy and Cooperstown Holstein, argued that this provision should be interpreted broadly to reach zoning laws that prohibit oil and gas activities, including hydrofracking, within municipal boundaries.

The Court of Appeals analyzed the supersession clause in light of its 1987 opinion in matter of Frew Run Gravel Prods. v. Town of Carroll, which identified the analytical framework to determine whether a supersession clause expressly preempts a local zoning law. The Court considered three factors (1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislative history. Frew Run was an opinion regarding the validity of the Town of Carroll’s zoning ordinance establishing a zoning district where sand and gravel operations were not permitted. A company seeking to open a mine challenged the zoning law, arguing that it was preempted by the supersession clause in the state-wide Mined Land Reclamation Law (MLRL) which provided:

"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 or other local laws which impose stricter mined land reclamation standards or requirements than those found herein" (ECL 23-2703 [former (2)] [emphasis added]).

In its June 24, 2014 decision, the Court of Appeals found that the plain language of the OGSML’s supersession clause is very close to that in the MLRL and based on the similarities declined to apply a broader meaning to it. The Court found that only local laws that would regulate the actual operations of oil and gas activities are preempted, not zoning ordinances that prohibit certain land uses. The Court further stated that the provision in the OGSML preserving the Towns’ jurisdiction over local roads and rights under the real property tax law was needed because these both touch on the operations of the oil and gas industries and they would have been preempted without this savings clause. In addition, other state statutes that clearly preempt home rule zoning powers often explicitly include zoning in the preemptive language. The OGSML supersession clause does not contain such language.

With respect to the second factor, the Court held that the supersession clause at issue fits comfortably within the statutory scheme of the OGSML since it invalidates local laws that would intrude on the State’s regulatory oversight of the industry’s activities. Lastly, regarding the third factor, the Court held that there is nothing in the legislative history of the OGSML showing an intent of the Legislature to take away local land use powers, but rather this history makes clear that the Legislature’s concern was to ensure that the State had the means to regulate the technical operations of the industry.

At the end of its opinion, the Court clarified that the Dryden and Middlefield appeals were not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York and stated that these major policy questions are for the branches of government to resolve.

Written by:

Bond Schoeneck & King PLLC

Bond Schoeneck & King PLLC 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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.