Matter of Norse Energy Corp. USA v. Town of Dryden (N.Y. App. Div. 3d Dep’t May 2, 2013); Cooperstown Holstein Corp. v. Town of Middlefield (N.Y. App. Div. 3d Dep’t May 2, 2013). In these challenges to local zoning laws that barred oil and gas drilling activities, the New York State Appellate Division, Third Department affirmed the decisions of the courts below, holding that the New York State Oil, Gas and Solution Mining Law (OGSML) neither expressly nor impliedly preempted the Towns’ zoning ordinances. With respect to express preemption, the Third Department held that the statutory text, legislative history and decisional law supported a conclusion that the OGSML did not preempt local bans on activities relating to oil and gas drilling. With respect to implied preemption, the court concluded that the OGSML did not conflict with local laws, finding that the local laws dictated the districts in which drilling could occur, while the OGSML mandated technical and operational requirements for drilling activities within such districts. On May 31, 2013, petitioners asked the New York State Court of Appeals for leave to appeal the Third Department’s decisions.

Lenape Resources, Inc. v. Town of Avon, Index No. 1060-2012 (N.Y. Sup. Ct. Livingston Co. Mar. 15, 2013). The Town of Avon enacted a one-year moratorium on natural gas drilling activities within the Town. Plaintiff challenged the moratorium on a number of grounds. Plaintiff’s principal contention was that the moratorium was expressly preempted by the OGSML, which provides that the OGSML “supersedes all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries.” Citing the Court of Appeals decision in Frew Run Gravel Products v. Town of Carroll (but writing that “[i]n this Court’s view, the Court of Appeals’ decision in Frew Run is flawed”), the court concluded that the local law enacting the moratorium was not preempted because it did not relate to the regulation of the oil, gas and solution mining industries but was concerned instead with general land use planning. The court quickly disposed of plaintiff’s other contentions, including that the moratorium constituted an unreasonable use of the Town’s police power (rejected on the ground that the moratorium was enacted pursuant to the Town’s zoning authority, not its police powers); that the moratorium violated the ex post facto clause (rejected on the basis that the moratorium did not make past conduct prospectively criminal); that the moratorium was enacted in violation of the State Environmental Quality Review Act (SEQRA) (rejected on the basis that the moratorium was a Type II action not subject to SEQRA review); that the enactment of the moratorium was arbitrary and capricious (rejected on the ground that as a legislative enactment the moratorium was a valid exercise of the Town’s zoning authority); that the moratorium was inconsistent with the Town’s comprehensive plan (rejected on the basis that there was not a clear conflict with the plan); and that the Town’s actions constituted a taking (rejected on ripeness grounds). The court also dismissed the proceeding against the Department of Environmental Conservation for failure to properly serve the Attorney General. Plaintiff has filed a notice of appeal to the New York State Appellate Division, Fourth Department.

State ex rel. Morrison v. Beck Energy Corp., 2013-Ohio-356 (Ohio Ct. App. Feb. 6, 2013). The Ohio Court of Appeals reversed a trial court order granting an injunction to the City of Munroe Falls, Ohio, which had issued stop work orders and filed a complaint to stop drilling activities within City limits for which permits had been issued by the Ohio Department of Natural Resources. The City claimed that the work violated local drilling, zoning, and rights-of-way ordinances. The appellate court ruled that the State’s oil and gas drilling statute conflicted with and thus preempted the local drilling ordinances as well as the City’s requirements for obtaining zoning certificates for drilling activities. The City’s rights-of-way ordinances were not preempted but could not be enforced “in a way that discriminates against, unfairly impedes, or obstructs oil and gas activities and operations.” On June 19, 2013, the Ohio Supreme Court accepted an appeal of this decision for review.