In a decision released this morning, June 30, 2014, New York’s highest court, the Court of Appeals, ruled that local municipalities possess the authority, under their municipal home rule powers, to totally ban hydrofracking within their municipal boundaries through use of their zoning powers.
Rather than burdening this posting with my own legal analysis, I will merely quote below the question addressed in the court’s decision, and the conclusion reached by the New York Court of Appeals in an opinion written by the Hon. Victoria A. Graffeo:
NEW YORK STATE COURT OF APPEALS
_______________________________
In the Matter of Mark S. Wallach,
as Chapter 7 Trustee for Norse
Energy Corp. USA, Appellant,
Town of Dryden et al., Respondents.
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Cooperstown Holstein Corporation,
Appellant,
Town of Middlefield, Respondent.
_______________________________
JUNE 30, 2014
GRAFFEO, J.:
We are asked in these two appeals whether towns may ban oil and gas production activities, including hydrofracking, within municipal boundaries through the adoption of local zoning laws. We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law (OGSML) does not preempt the home rule authority vested in municipalities to regulate land use. The orders of the Appellate Division should therefore be affirmed.
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At the heart of these cases lies the relationship between the State and its local government subdivisions, and their respective exercise of legislative power. These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits. These are major policy questions for the coordinate branches of government to resolve. The discrete issue before us, and the only one we resolve today, is whether the State Legislature eliminated the home rule capacity of municipalities to pass zoning laws that exclude oil, gas and hydrofracking activities in order to preserve the existing character of their communities. There is no dispute that the State Legislature has this right if it chooses to exercise it. But in light of ECL 23-0303 (2)’s plain language, its place within the OGSML’s framework and the legislative background, we cannot say that the supersession clause — added long before the current debate over high-volume hydrofracking and horizontal drilling ignited — evinces a clear expression of preemptive intent. The zoning laws of Dryden and Middlefield are therefore valid.
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With All Due Respect,
Art Giacalone
With All Due Respect 