On Tuesday, Judge Lebous of the Broome County Supreme Court (a New York trial level court) became the third New York judge to recognize that the state Oil, Gas, and Solution Mining Law does not override or “preempt” local control of the location of gas drilling activities. In the opinion, Judge Lebous explicitly adopted the “well reasoned, well founded decisions” of the Dryden and Middlefield cases—both of which uphold the authority of local governments to limit the location of or exclude fracking.
The court did ultimately invalidate the ordinance on other technical grounds—specifically, certain types of moratoria passed as “police power” actions in New York have to meet a stringent “dire necessity” standard, which, the lower court held, was not met by the circumstances surrounding the Binghamton moratorium. Tuesday’s ruling, however, affirms the status quo with respect to home rule authority over gas drilling. Namely, that municipalities still have the authority to limit or ban fracking through the use of local zoning power.
It’s worth noting, however, that these local rights are not yet set in stone. Appeals in the Dryden and Middlefield cases may be formalized or “perfected” by industry sometime within the next few weeks, which would mean that an appellate court may hear challenges to those decisions as early as this winter. There’s also always the chance that, whatever the result of the appeals, these cases will find their way into the state’s highest court, the New York Court of Appeals. Regardless, because of their solid reasoning and the strong legal support for home rule authority in New York, it is expected that these decisions will be upheld.
As part of NRDC’s longstanding work on these issues, and through its new Community Fracking Defense Project, NRDC will continue to fight on behalf of local rights to protect against the harms of fracking in these and other important home rule cases.