Last month, I posted on the oral argument that took place at the New York Court of Appeals addressing two local towns’ bans on fracking within its borders.  On June 30, 2014, the Court of Appeals issued its decision, rejecting the companies’ preemption argument and upholding the fracking ordinances.

On appeal, the companies argued that the Oil, Gas, Mining Law (OGSML) contains a supersession clause that expressly preempts local zoning laws that restrict oil and gas activities. In response, the towns claimed that they acted within their home rule authority, enabling them to preserve their communities and protect the “health, safety and general welfare” of their towns.

The relevant part of the supersession clause of the OGSML states: “The provisions of this article [i.e., the OGSML] shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution local government jurisdiction…”  The court analyzed this section in light of its decision in Matter of Frew Run Gravel Prods v. Town of Carroll, which set forth a three-factor inquiry to determine whether a supersession clause preempts a local zoning law.  The three factors to be considered are: (1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislature history.  Applying these factors, the Court found that the supersession clause of the OGSML only preempts local laws that regulate “how” fracking operations are conducted, not “where” they are conducted through zoning ordinances.  In addition, the court found it significant that the provision did not explicitly mention zoning, which

For a more detailed analysis of the Court’s decision and its potential implications, please visit my article entitled NY High Court Cases May Impact Fracking Nationwide, published by Law360, available at