New York appeals court says towns can ban hydraulic fracturing

The New York State Supreme Court Appellate Division ruled May 2 that townships in New York state can ban hydraulic fracturing and shale gas drilling within municipal borders. The appeals court ruled in favor of the towns of Dryden and Middlefield.

Both Dryden and Middlefield had passed zoning laws against gas drilling activities, and the appeals court upheld the zoning laws for the two communities in two separate cases. Dryden is in Tompkins County while Middlefield is in Otsego County. Norse Energy Corp. was the plaintiff in the Dryden case.

Norse Energy's predecessor in lease interest, Anschutz Exploration Corp. of Denver, filed a lawsuit in September 2011 concerning its leases in Dryden, court documents showed. Anschutz later sold those leases to Norse.

The natural gas industry argues New York law defers regulatory oversight of drilling to the state. Attorneys for Dryden and Middlefield argued a “home use” clause in state law gave them the ability to use zoning laws as they deemed best. The four-judge appeals court ruled unanimously in favor of Dryden and Middlefield.

The appeals court ruling said, "While the town's exercise of its right to regulate land use through zoning will inevitable have an incidental effect upon the oil, gas, and solution mining industries, we conclude that zoning ordinances are not the type of regulatory provision that the Legislature intended to be preempted" by the New York Oil, Gas, and Solution Mining Law."

In a separate case, Lenape Resources Inc. has a lawsuit against Avon, a town in Livingston County, NY, to overturn a municipal moratorium on fracturing (OGJ Online, Dec. 3, 2012).

Meanwhile, New York has had a temporary moratorium on high-volume fracturing since 2010 while the New York Department of Environmental Conservation develops proposed rules.

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