Last week, the Supreme Court of Livingston County* became the fourth New York court to hold that New York state law does not prevent local towns from using zoning to exclude industrial fracking activities from within town borders. The case marks the defeat of a challenge by oil and gas company, Lenape Resources, against a Town of Avon law that temporarily prevented drilling in the town, and an 0-4 record for oil-and-gas-related challenges against local zoning generally.
While Lenape hasn't yet signaled whether it will appeal, just yesterday appellate arguments were heard in the two headlining cases on this issue, the Dryden and Middlefield appeals. The cases were the first to hold that the state oil and gas law** was never intended to usurp towns’ traditional zoning function. (To see the amicus brief that NRDC filed on behalf of a number of NY environmental organizations in these appeals, click here).
The central issue in these cases is whether language in the state oil and gas law preventing towns from passing laws "relating to the regulation" of the oil and gas industry destroys a town's ability to exclude drilling activities from a particular zone (or all zones) or its authority over traditional land use issues, such as noise, traffic, and light pollution.
Industry attorneys argue that the answer to this question must be "yes" because the 1981 law was designed to promote oil and gas development by eliminating the then-existing hundreds of local town laws attempting to regulate drilling—centralizing all industry regulation at the state level instead. Accordingly, they argue, because the law allows drillers to propose where wells will be placed, this must mean legislators at that time handed over near complete authority to locate industrial drilling operations to the oil and gas companies without leaving any locating authority to local governments whatsoever.
As deftly pointed out by the attorneys for the two towns, this interpretation of the law is, in a word, absurd. Simply because the state passed a law trying to prevent towns from acting as environmental regulators, doesn't mean that it wanted drilling companies to start acting like local zoning boards. Surely if oil or gas is extracted, the state has an interest in setting uniform rules, but that doesn't require giving carte blanche to the industry to place frack wells, waste pits, and compressor stations next door to a school or in the middle of a quiet residential neighborhood.
Overriding all zoning everywhere with respect to a polluting industrial activity is a crazy idea. So crazy, in fact, that when legislatures attempt to do it (such as in Pennsylvania), they are very clear about their intentions. A law that doesn't mention land use or zoning concerns at all, such as New York’s oil and gas law, simply does not support such an extreme interpretation. And so far, every New York court that has addressed the issue has agreed.
* In New York State, the Supreme Courts are the state's trial level courts.
** Officially, the New York Oil Gas and Solution Mining Law, or OGSML.