On June 30, 2014, the New York Court of Appeals ruled that municipalities in New York State may use their zoning powers to restrict hydraulic fracturing (“fracking”), thus upholding fracking bans that had been enacted by the Towns of Dryden and Middlefield. The key issue on appeal was whether New York State’s Oil, Gas and Solution Mining Law (“OGSML”), which “supersede[s] all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,” preempts municipalities from subjecting fracking operations to local zoning laws. The two Appellate Division, Third Department decisions from which the appeal arose, Norse Energy v. Dryden (2013) and Cooperstown Holstein v. Middlefield (2013), found that such municipal action was not preempted.

The 5-2 majority Court of Appeals opinion affirmed these two decisions, and concluded that the OGSML “does not preempt the home rule authority vested in municipalities to regulate land use.” The majority examined the plain language, statutory scheme, and legislative history of the OGSML and found “no legislative intent” to preempt “local land use regulations” such as the challenged fracking bans. The dissenting opinion, in contrast, found that the fracking bans were not actually land use regulations, but attempts at regulating the oil, gas, and solution mining industry which were preempted.

This decision has important statewide implications, as it settles the legal question of whether the fracking restrictions implemented by over 170 New York municipalities can be challenged on preemption grounds, and having clarified this question, it may spur wider adoption of such laws.

For more information about the intersection between hydraulic fracturing and land use laws in New York State, contact Steven Barshov.