Rehearing Denied: Dryden Hydrofracking Ban Remains in Place

Recently, New York’s highest court declined to reconsider a prior decision that upheld a town’s authority to ban activities associated with hydrofracking.

The underlying case attracted widespread attention. ​In 2011, the Town of Dryden amended its zoning ordinances to ban all activities related to the exploration, production or storage of natural gas and petroleum. The zoning amendment essentially prevented hydrofracking activities within town limits. A drilling company challenged the zoning amendment. It owned leases covering over 22,000 acres of land within Dryden’s borders. It argued that the zoning amendment is preempted by the Oil, Gas and Solution Mining Law (ECL 23-23-0301 et seq. (OGSML)).

In response, Dryden argued that the OGSML does not preempt the zoning ordinance amendment because the regulation of land use falls within it’s home rule authority. The lower court agreed. The Third Department held that the OGSML does not preempt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance “banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.” The supersession clause within the OGSML provides that it shall supersede all local laws or ordinances “relating to the regulation of the oil, gas and solution mining industries … [emphasis added].” Regulation, the court wrote, can be defined as “authoritative rules dealing with details or procedure.” The court found that the OGSML does not preempt Dryden’s amended zoning ordinance because it has nothing to do with the technical operational activities of the oil, gas and mining industries. Rather, it falls within the area of traditional land uses that are the subject of a local municipality’s home rule authority.

This past June, the Court of Appeals affirmed the decision, which also affects a companion case arising out of the town of Middlefield, New York. That denial means that the Court of Appeals’ June ruling stands.

According to reports, approximately 150 New York municipalities have enacted local bans or moratoriums on hydrofracking activities.

 

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