NY Local Governments and Zoning Bans for Hydraulic Fracturing – Part 2

MDN reported yesterday that Gregory Sovas recently addressed local government leaders in Upstate NY to brief them on the fact that local governments cannot enact laws—zoning or otherwise—that would prohibit hydraulic fracturing or drilling in the Marcellus and Utica Shale. The legal principle is that local government laws cannot supersede the state law when it comes to regulating oil and gas drilling. Mr. Sovas should know—he’s the author of the language that became the law.

MDN received a number comments on that article (see here) stating the legality of local zoning ordinances regulating oil and gas drilling is far from over. The commenters claim that New York’s law in this regard is not yet settled.

A recent article sums up that viewpoint, stating that DEC Commissioner Joe Martens has left the door open in the forthcoming new regulations for local governments to control or even ban fracking by using zoning ordinances (although no one has seen the full copy of the regulations yet, so it’s all still speculative).

Governor Andrew Cuomo is likely to codify the DEC recommendations into law, opening private land up to fracking. Municipalities however still have the power to enact zoning laws to keep oil companies out. Martens reported that fracking could only take place in the appropriate industrial zones.

An attorney in Cooperstown, N.Y., Michelle Kennedy, already suspected this would be the key to shutting down fracking operations. She is leading the towns of Middlefield and Otsego in an initiative to beef up their zoning laws and keep would-be frackers out.

“This is an industrial activity that may not be compatible with already existent uses within the town, or based upon a comprehensive plan could be generally prohibited within the town … just like any use may not be permitted under zoning law,” said Kennedy in a phone interview.

She points to a precedent set by cases involving the mining of solids. In Free Run Gravel Products vs. Town of Carroll in 1987 and Gernatt Asphalt Products Inc. vs. the Town of Sardinia in 1996, the towns were able to shut out mining operations using zoning regulations. The cases were upheld right through to the State Court of Appeals.

“We would anticipate the same result in the case of natural gas extraction,” said Kennedy.

When asked whether he thinks municipalities that are opposed to fracking might successfully pursue this course of action, Martens replied that, “The law is not perfectly clear … I think we’ll see some legal challenges along the way that will make that clearer.”*

Sounds like those opposed to drilling will try and litigate this out for as long as possible by taking their fight local.

*The Epoch Times (Jul 4, 2011) – DEC Leaves Hydrofracking Loophole