Two New York State trial courts have upheld town zoning ordinances that prohibit fracking operations. In Anschutz Exploration Corp. v Town of Dryden, 2012 N.Y. Misc. LEXIS 687 (Sup Ct-Tomkins Cty 2/21/12) and Cooperstown Holstein Corporation v Town of Middlefield, No. 2011-0930 (Sup. Ct-Otsego Cty. 2/24/12), the plaintiffs argued that the state Oil, Gas and Solution Mining Law (OGSML) pre-empted such ordinances. However, both courts said there was no conflict because the OGSML dealt with the “how” of oil and gas exploration while the zoning ordinances addressed the “where” such operations could be conducted.
The OGSML provides that shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law. The courts pointed to similar language in the Mined Land Reclamation Law (MLRL) that the state Court of Appeals had ruled did not preempt a local zoning ordinance that prohibited gravel operations within their jurisdiction.
Both courts said that neither the plain language of the OSSML or the legislative history had any indication that the legislature had intended to abrogate the statutory and constitutional authority vested in local municipalities to regulate local land use. The Dryden court also found support that state statutes that indisputably preempt the local zoning power contained provisions that the traditional concerns of zoning were required to be considered by the agency charged with deciding whether to issue a permit under state law. In contrast, the court said, OGSML only requires that notice be provided to a municipality before drilling commences after a well permit has been granted.
These decisions were rendered by county trial courts. It is anticipated that these opinions will be appealed and will probably end up being heard by the state’s highest court- the Court of Appeals.