Appeals Court Upholds Town’s Right to Prohibit “Hydrofracking”

On May 2, 2013, a mid-level New York appellate court affirmed a town’s right to prohibit, through local zoning laws, the exploration for natural gas and oil through traditional means and by hydraulic fracturing or “hydrofracking.” The case, Norse Energy Corporation, USA v. Town of Dryden, et al., revolved around whether New York’s Oil, Gas and Solution Mining Law (OGSML) preempted a municipality’s power to prohibit oil and gas mining.

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Third Department Reviews Freedom of Information Law Applicability to Hudson River PCB Cleanup Records

In the Matter of Town of Waterford v. New York Department of Environmental Conservation, __ N.Y.S.2d ___ (2010) the Appellate Division, Third Department addressed the scope of exemptions to New York’s Freedom of Information Law (FOIL), codified in Article 6 of the Public Officers Law (POL).  Specifically, the Court examined whether the “inter–agency and intra-agency communications” exemption to disclosure applied to communications between a state agency, the Department of Environmental Conservation (DEC) and a federal one, the US Environmental Protection Agency (EPA).  The Court also reviewed whether documents created as part of settlement negotiations could be properly withheld from disclosure.

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Second Circuit Panel Reviews Legality of Suffolk County Mosquito Control Activities

The 2nd Circuit Court of Appeals in Peconic Baykeeper Inc. v. Suffolk County, __F.3d __, 2010 WL 1192325 (C.A.2, N.Y.) recently ruled on the legality of Suffolk County’s mosquito control activities. The case involved a challenge, brought under the Clean Water Act (CWA) by Peconic Baykeeper, Inc., to various efforts conducted by Suffolk County (Suffolk) to curb the mosquito population, including airborne spraying of two pesticides and the dredging of a network of mosquito ditches which drain marshland surface waters reducing the mosquito the breeding grounds. After a careful examination of the facts and application of federal rules governing these activities, the 2nd Circuit vacated portions of the Eastern District of New York District Court’s ruling on Suffolk’s spraying activities but affirmed the lower court’s approval of Suffolk’s dredging maintenance activities.

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