New York's Highest Court Holds that Zoning Laws of New York Towns Banning Fracking Are Enforceable — A Brief Analysis of the Oral Arguments and the Court's Opinion

by King & Spalding

A non-profit, Food & Water Watch, reports that 421 measures against fracking have been passed by state and local governments and that communities across the nation are lobbying their local and state elected officials because they believe fracking poses an unacceptable risk to their drinking water. Energy companies, however, maintain that the process is safe when done properly, brings economic development to communities, and is necessary to achieve national energy independence.

A key battleground for this controversy is the region overlying the Marcellus Shale, a rock formation rich with natural gas that extends from Ohio and West Virginia into Pennsylvania and New York. Seventy New York municipalities have zoning laws that prohibit oil and gas drilling operations, including fracking, and more than a hundred have enacted moratoriums on drilling activities.

New York's highest court agreed to hear appeals from an energy company and a gas lessee challenging two lower court decisions that upheld zoning laws that ban drilling and fracking in the towns of Middlefield and Dryden. Norse Energy Corp. USA, v. Town of Dryden. Numerous amicus briefs were filed, including a brief by the American Petroleum Institute.

The appeal was decided on June 30, 2014. The webcast and transcript of the oral arguments, which may be found on the New York Court of Appeals' website, contain many questions and comments by the justices that may provide insight into the issues that concern them.

Appellants' principal argument was that all zoning ordinances banning fracking or drilling activities are preempted by, and are unenforceable under, a 1981 amendment to a New York statute that was enacted long before fracking became controversial. The statute, ECL §23-0303(2), states:

The provisions of this article [of the Oil, Gas and Solution Mining Law ("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.

Appellants argued that the plain language of this provision: (1) vests exclusive control over oil and gas activities in the state, including the responsibility for proper well spacing and location; and (2) supersedes all municipal zoning laws prohibiting drilling or fracking operations because such laws constitute a regulation of the oil and gas mining industries. Appellants further argued that the fact that the statute provides for only two exceptions (local roads and real property tax) evidences a legislative intent that zoning ordinances are superseded along with all other regulations not stated in the two express exceptions.

One of the courts below, however, interpreted the statute differently, stating: "The zoning ordinance at issue, however, does not seek to regulate the details or procedure of the oil, gas and solution mining industries. Rather, it simply establishes permissible and prohibited uses of land within the town for the purpose of regulating land generally." The towns also argue that the OGSML preemption provision is indistinguishable from a preemption provision contained in another New York statute that has been interpreted by the New York courts to not preempt zoning laws. The towns further argue that: (1) the right of towns to regulate and zone land use is an important fundamental right; (2) that statutes that have been found to preempt or limit this right expressly reference zoning and land use laws; and (3) therefore, because the OGSML does not expressly reference zoning laws, it does not preempt them.

Both sides argued that important public policy interests were at stake and that the statute should be interpreted to support the policy interest favored by that side. For example, Appellants' brief asked: "What prudent operator would ever invest in oil and gas development in New York if, after the fact, municipalities could, based upon a 3-2 majority vote, enact broad based drilling bans that obliterate the operator's entire property interest?" The towns replied that this was a false concern because several other oil and gas producing states permit localities to prohibit drilling within their borders, including California, Illinois, and Texas, and oil and gas investment is flourishing in these states.

Another policy argument that drew interest from the justices was that to properly develop the state's energy resources, the state needs to be able to decide where drilling may take place and that doing so effectively would become unworkable if 932 towns in the state are allowed to override the state's drilling decisions.

The Court held that New York's current statutes fail to provide a "clear expression" of intent to preempt the municipal ordinances:

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 State Legislature has this right if it chooses to exercise it. But in light of ECL 23-0303 (2)'s plain language, its place within the OGSML's framework and the legislative background, we cannot say that the supersession clause—added long before the current debate over high-volume hydrofracking and horizontal drilling ignited—evinces a clear expression of preemptive intent.

Justice Pigott issued a dissenting opinion that disagrees with the majority's interpretation of the supersession clause.

One lesson from the case is clear. If a state wishes to avoid litigation as to whether municipalities are precluded from passing zoning laws that prohibit all drilling and fracking operations, it should enact a law that expressly states that zoning laws are superseded or preempted.

The litigation and legislative battles over fracking continue to rage with both sides scoring wins. Although New York courts have upheld zoning laws prohibiting fracking, on June 4, 2014, North Carolina's governor signed a law that lifts a 2012 moratorium and that clears the way for permits to be issued for gas drilling by fracking by next spring.

H. Victor Thomas
+1 713 276 7363
View Profile »


Written by:

King & Spalding

King & Spalding 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 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:

- 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.