Home Rule Victory in New York! - First NY Appellate Court to Rule that Towns Have Right to Zone Out Fracking.

For those keeping score, today’s ruling  by the state Appellate Division in the Dryden and Middlefield cases marks the fifth and sixth victories in an undefeated winning streak for the right of New York towns to use their zoning authority to exclude industrial fracking activities.  The unanimous decision comes just over a month since the court heard oral argument in late March, and marks the first time that a state appellate level court has weighed in on this issue of critical importance to all New Yorkers.

In brief, the decision affirms that the state oil and gas law does not disturb what has been the status quo in New York since the birth of zoning—that towns generally have the power to make democratic decisions about whether and where industrial activities are appropriate in their communities.  As argued in the amicus brief NRDC filed in both cases,* this traditional power has been critical to protecting the health, resources, character, and well-being of New York localities for close to a hundred years.

While I’ve blogged about these cases for some time, here are a few notables from today’s opinion:

• It’s Not DEC’s Job to Promote Gas Drilling—The court today utterly rejected the industry claim that the state oil and gas law intends for the state Department of Environmental Conservation (DEC) to encourage drilling wherever possible.  To the contrary, “the Legislature clearly acknowledged that promotion and regulation [of oil and gas drilling] were considered separate” and that DEC’s job is regulation only.
• Regulation of Oil and Gas Drilling Is Not Regulation of Land Use – I’ve said it before, and I’ll say it again: regulating the technical aspects of oil and gas production is a world apart from local zoning regulation.  While the state oil and gas law does try to prevent municipalities from becoming environmental regulators, it did not envision the DEC becoming your local zoning board.
• Land Use More Than Just “Where”?—Not only does today’s opinion draw the distinction between oil and gas regulation and land use regulation, it also notes that land use regulation concerns important community character issues—such as reducing excess noise, light, and air pollution—beyond simply the location of activity.  While not directly addressed by the court, the opinion suggests that towns may be able to exercise traditional zoning authority to address these concerns as well.  This would mean that any existing or future oil or gas drilling operations would have to follow the same reasonable zoning regulations applicable to just about every other industry in the state.

Looking ahead, there is no word yet whether industry will try to appeal these decisions, or whether they feel like they’ve taken enough of a pummeling on this issue already.  In any event, today is a day to celebrate a huge victory for the towns of Dryden and Middlefield, and for all cities, towns, and villages statewide.

* The amicus brief was filed on behalf of Catskill Mountainkeeper; Delaware Riverkeeper Network; Gas Drilling Awareness for Cortland County; Otsego 2000; the Preservation League Of New York State; Riverkeeper; Theodore Gordon Flyfishers; Vestal Residents For Safe Energy; and NRDC itself. The outstanding attorneys at Earthjustice—who represented the environmental amici in the lower courts—represented the Town of Dryden in the Dryden case.

UPDATE June 6, 2013:  Industry attorneys recently petitioned New York’s highest court, the Court of Appeals, to hear an appeal of the Dryden and Middlefield decisions.   Whether or not the high Court will take the cases is anyone’s guess, because the unanimous Appellate Division decisions create no obligation on the Court to hear the appeals.  As always, stay tuned for further updates.