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New York’s Highest Court Hears Argument on Whether Municipalities Can Ban Fracking through Zoning

August 20, 2014

Author: Carl J. Pernicone

On June 3, 2014, New York’s highest court, the Court of Appeals, heard argument in a pair of cases – Matter of Wallach, et al. v. Dryden and Cooperstown Holstein Corp. v. Middlefield – concerning whether anti-fracking zoning regulations enacted by municipalities can take precedence over New York’s pro–energy development oil and gas law. In this closely watched decision, a majority of the New York Court of Appeals has held that local anti-hydrofracking zoning rules can trump the state’s pro–energy development oil and gas law.

Earlier this year, the Pennsylvania Supreme Court addressed the same issue under Pennsylvania law in its Robinson Township decision. The dispute before the New York Court of Appeals centered on certain preemptive language in New York’s oil and gas law, which states in relevant part that it “supersedes all local laws or ordinances,” but contains exceptions for “local government jurisdiction over local roads or rights of local governments under the real property tax law.” The law is silent on the issue of zoning. The lower courts in both cases sustained the use of zoning regulations to ban fracking and the energy companies appealed.

Trade press reports indicate that, in its colloquy with counsel, the court expressed concern with the clarity of the law as currently written. Several judges noted that the legislature could, of course, overrule its decision by amending the law to expressly address the issue of whether municipalities have the power to ban fracking within their borders. The Court’s decision confirms this point: “The discretre issue before us, and the only one we resolve today, is whether the State Legislature eliminated the home rule capacility of municipalities to pass zoning laws that exclude oil, gas and hydrorfracking activities in order to preserve the existing character of their communities. There is no dispute that the legislature has this right. (emphasis supplied)  Coincidentally, earlier this month, North Carolina enacted comprehensive legislation authorizing hydraulic fracturing and barring municipalities from passing zoning regulations banning or curtailing energy exploration, development and production activities.

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