Last week, New York’s highest court (the New York Court of Appeals) agreed to hear the industry appeals of two decisions issued by the New York Appellate Division this past spring in the Dryden and Middlefield cases, in which it unequivocally upheld the right of two New York towns to zone fracking activities within their borders.
The case will be the first opportunity for the high court to weigh in on the issue of municipal home rule when it comes to fracking (in other words, the ability for a community to make its own decisions about whether and how the activity takes place within its borders). Although the Court issued no reasoning for its decision to hear the appeals, there is good reason to think that it will affirm local control.
To start, while four local bans or moratoria in the state have been challenged to date, not a single lower New York court has held that the state oil and gas law—as industry would assert—preempts local zoning (information on the other two challenged town laws is here and here).
Furthermore, as recognized in the lower court opinions, the Court of Appeals has already dealt with this issue three times in the context of another industrial activity, solid mineral mining (e.g. coal or gravel). In all three of those cases, the Court held that provisions of the state’s mining law nearly identical to those at issue in the present appeals did not eliminate local authority to limit or completely exclude all mining from within local borders. If the Court decides to follow similar reasoning in the current appeals, these cases will put to bed, once and for all, industry claims that New York towns are without power to exercise their traditional zoning authority when it comes to fracking.
As we did before in the lower court cases, NRDC will support the land use rights of all New York municipalities over industrial fracking activities in these appeals by filing an amicus brief with the high court in support of the Towns of Dryden and Middlefield. We strongly believe that communities should be able to make their own decisions about their fracking fate, and as part of our Community Fracking Defense Project, we are fighting to help empower towns to do just that.
More information on the likely timing and procedural aspects of the appeals is available on the Community Environmental Defense Council website.