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.

The OGSML expressly provides that it shall “supersede all local laws or ordinances relating to the regulation of the oil, gas and mining industries....” The main question, therefore, before the court was whether the Town of Dryden’s zoning law prohibiting this kind of mining ran afoul of the OGSML’s ban on local regulation of gas and oil mining. In a well reasoned opinion, the court found that the state legislature, in passing the OGSML, did not intend to ban local zoning laws which establish permissible and prohibited uses within a town. Instead, the court found that the preemption language in the OGSML was only intended to ensure that there would be uniform standards and procedures over the technical operations of the oil, gas and mining industries. The court found that there was nothing in the law or its legislative history which indicated an intent to usurp traditional local municipal authority to legislate allowed and prohibited uses within their jurisdiction.

In practice, this ruling will allow municipalities to pass zoning laws which prohibit hydrofracking within their borders. Given the heated public debate over whether hydrofracking should be allowed at all in New York, this decision will resonate in many communities throughout the state. It is also likely that the oil and gas industry will seek judicial review of this decision by New York’s highest court, the Court of Appeals. It remains to be seen how broadly this case will be applied and in which other situations the courts will allow municipalities to use their zoning powers to regulate activities within their borders.