On Monday, New York's highest court—the New York Court of Appeals—upheld local bans on shale gas drilling designed to eliminate hydraulic fracturing. The 5-2 decision clears the way for drilling opponents to target fracking at the local government level while the statewide moratorium remains in limbo.
Judge Victoria Graffeo wrote the opinion for the majority, which held that the "statewide Oil, Gas and Solution Mining Law (OGSML) does not preempt the home rule authority vested in municipalities to regulate land use," and therefore could not restrict municipalities' ability to eliminate drilling through its zoning powers.
The court emphasized that it "will invalidate a zoning law only where there is a 'clear expression of legislative intent to preempt local control over land use,'" because zoning is a "core power" of municipalities in New York.
The dissent, written by Judge Eugene Pigott, criticized the municipalities' use of zoning as a "pretext" to regulate oil and gas drilling, likening the bans instead to "regulation."
Over 70 local fracking bans have already been passed in New York, along with several dozen fracking "moratoriums."
The decision to uphold these bans creates additional risk for drillers in New York, with the potential for acquiring mineral rights that may become worthless in the event of a local ban. To overturn the bans, drilling operators would need to ask the legislature to revise New York's oil and gas laws to specifically preempt local zoning laws.
Additional coverage of this story can be found here, here, and here.
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