Monday, June 30, 2014

New York's highest court holds local governments have power to regulate fracking under zoning authority

Today saw a major decision by New York's highest court regarding regulation of hydraulic fracturing, or fracking.  Here is a brief summary Prof. John R. Nolon (Pace) has provided:

In one of the most anxiously awaited New York land use decisions in recent memory, the state’s highest court held today that local governments have the power to regulate hydrofracking  under their authority to enact zoning ordinances.  Both the towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their jurisdictions.  The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, the statutory scheme, and its legislative history, the court concluded that the legislature did not expressly or by implication preempt the power of localities in New York to regulate land use. Preempted, under the OGSML, in the court’s view, was the power to regulate the details, procedures or operations of the oil and gas industry, not matters normally associated with land use regulation.

The Court of Appeals in Dryden and Middlefield rested its decision on both the Municipal Home Rule Law (MHRL) and the Town Law.  The MHRL contains a seldom-cited provision granting authority to local governments, including towns, cities, and villages, to protect and enhance their physical and visual environments. The Town Law is New York’s version of the Standard Zoning Enabling Act, which was the model for most state statutes that delegate zoning authority to local governments. The court pointed to the breadth of municipal zoning powers to provide for the development of a balanced, cohesive community and to the notion that the regulation of land use through the adoption of zoning is one of the core powers of local governments.

This case, along with Robinson v. Township in Pennsylvania and others that support local regulation of hydrofracking are creating a demand for land use clinics to provide technical assistance to local governments regarding their regulatory options.  The Land Use Law Center and the Yale Center for Environmental Law and Policy are conducting a long-term project that will engage industry representatives, regulators, scientists, and local leaders in a process of identifying unregulated local impacts and developing sound local planning, regulatory, and non-regulatory practices that localities can adopt.  For more project information, visit

The cases, Nos. 130 and 131, are available on the Court of Appeals website, under today’s date.

Stephen R. Miller

| Permalink