Back in September, I posted on New York’s highest court agreeing to take on the appeals of two related cases unanimously upholding local bans on fracking. Earlier this month, the New York Court of Appeals finally heard arguments on these two cases (a video of the oral argument can be viewed here).

These two highly charged cases addressed whether the state’s oil and gas law preempted the town’s ability to regulate fracking within its borders.  In the first case, Matter of Norse Energy Corp. v. Town of Dryden, Anschutz Exploration Corp. sued the Town of Dryden for its amendment to a zoning ordinance that banned all activities related to fracking, claiming that the ordinance was preempted by the Oil, Gas and Solution Mining Law (“OGSML).  The New York Appellate Division (Third Department) affirmed the trial court’s ruling, holding that the OGSML did not preempt the Dyden’s zoning ordinance because the OGSML regulates “how” fracking must be conducted, and not “where” fracking can take place.  In the second case, Cooperstein Holstein Corp. v. Town of Middlefield, a dairy farm similarly challenged the Town of Middlefield’s zoning ordinance prohibiting fracking on the basis of preemption.  Again, the New York Appellate Division (Third Department) affirmed the trial court’s decision upholding the local ban on fracking.

At oral arguments, the Appellants’ attorneys argued both express and implied preemption claiming that the DEC completely preempted the field, even something as basic as zoning, despite the word zoning being absent from the statute.  In fact, one of the seven judges on the bench found it “kind of curious” that the legislature had referred to zoning before in other regulations, but did not do so here, indicating that if the legislature wanted to preempt zoning, it could have expressly done so.  The Appellants explained that allowing each local town to regulate fracking would yield an “unworkable patchwork.”  One of the seven judges on the bench, however, responded by asking: Isn’t zoning fundamental to municipalities and can [the state] take it away so easily?  The attorney stated that “seventy municipalities in New York have banned oil and gas drilling.  Are we going to let 932 towns decide the energy policy of New York State?” Indeed, the attorney emphasized that “we will not have a uniform state approach to energy if we allow 932 towns in the state of New York to decide.”

This decision, although involving just two municipalities, will no doubt have great consequences for environmentalists and energy companies throughout the state.  In fact, one of the judges emphasized during arguments: “We are not actually deciding this case for just two municipalities, there will be implications for the other seventy.”   A decision from the Court of Appeals is expected within the month, and we will be sure to cover this highly charged fracking preemption ruling.