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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
Courthouse News Service Courthouse News Service

New York Hyrdrofrackers Won’t Get Rehearing

ALBANY, N.Y. (CN) - A case where New Yorkers used local zoning codes to keep hydrofracking at bay will not face rehearing, the state's high court said.

Companies interested in exploring for natural gas in the vast Marcellus Shale formation that stretches east from Ohio began securing land leases with property owners across upstate New York beginning in the mid-2000s.

Environmental and safety concerns connected to "fracking" led an estimated 150 New York municipalities to enact local bans or moratoriums on the mining technique, which involves pumping water and chemicals under high pressure into horizontal wells to rupture shale to release natural gas.

Dryden, a town near Ithaca in New York's Finger Lakes, had a land-use master plan that precluded activities not specifically allowed, such as natural gas extraction. When Dryden passed a zoning ordinance that banned oil and gas drilling and storage within town borders, Norse Energy sued.

The company claimed the zoning ran afoul of the so-called supersession clause in the state's Oil, Gas and Solution Mining Law, part of environmental conservation law.

Dryden countered that its actions fell within its home-rule authority and prevailed in court.

This past June, the divided Court of Appeals affirmed that no part of New York's environmental-conservation law pre-empts the home-rule authority of localities to decide land use.

The ruling also involved similar action that another mining company, Cooperstown Holstein Corp., brought against the town of Middlefield in central New York.

The Court of Appeals declined to revisit those cases Thursday among a list of motion actions.

That denial keeps the June ruling intact.

Judge Victoria Graffeo, who wrote for the June decision for a five-judge majority, said supersession clause "is most naturally read as preempting only local laws that purport to regulate the actual operations of oil and gas activities, not zoning ordinances that restrict or prohibit certain land uses within town boundaries."

Two dissenting judges calling the zoning ordinances a "pretext" for regulating industry.

"Municipalities may without a doubt regulate land use through enactment of zoning laws," Judge Eugene Pigott wrote, "but, in my view, the particular zoning ordinances in these cases relate to the regulation of the oil, gas and solution mining industries and therefore encroach upon the Department of Environmental Conservation's regulatory authority."

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