Yesterday, a Tompkins County Judge delivered a decisive victory for the town of Dryden and municipalities statewide by upholding the town’s recently passed zoning ordinance banning fracking anywhere within its borders against a challenge by a Colorado drilling company (see opinion here.)
As NRDC has blogged before, the case turned on whether New York municipalities may use traditional zoning authority to limit or exclude oil and gas activities within their borders, including drilling using the industrial and accident-prone technique known as fracking. Dryden, understandably, argued that it had this power; Anschutz, the gas company, argued that Dryden, like all municipalities, had zero authority to say where oil and gas activities – such as well pads, condensate tanks, compressor stations, pipelines, chemical storage, toxic impoundment ponds, and temporary worker facilities – may be placed.
The precise legal question at issue was whether language in the state law that governs gas drilling (the OGSML) barring municipalities from passing laws “relating to the regulation of oil, gas, and solution mining industries” completely prevented or “preempted” traditional local zoning authority. Although few New York courts have interpreted this provision, the state’s highest court (the Court of Appeals) has interpreted a nearly identical preemption provision of the state mining law on three separate occasions – upholding local zoning authority every time. (See Frew Run, Hunt Bros., and Gernatt Asphalt).
The decision of the court yesterday, then, can be seen as kind of a “no brainer.” Not only is it consistent with high court decisions in New York, as well as those of other states (namely Pennsylvania and Colorado), it also just makes sense. When the state legislature decided that municipalities weren’t the best folks to regulate the oil and gas industry (e.g., to determine how wells should be drilled or the technical details of waste disposal), they likely didn’t mean to render towns powerless to stop a frack well from being drilled next door to a hospital or in the middle of a suburban neighborhood.
Yesterday’s decision simply allows Dryden to continue to do what all New York municipalities have been able to by law for over a hundred years: use zoning to protect the health of their residents and the character of their neighborhoods from unwanted and incompatible industrial activity.
While the decision is certainly grounds for celebration, don’t break out the champagne just yet. A similar zoning challenge in Middlefield, NY is still undecided, and in any event, both cases are expected to result in appeals. Additionally, as we recently saw in Pennsylvania, state legislatures may easily be swayed by industry to crush municipal zoning authority, regardless of what the courts may say.
That’s why, as I stressed in my last post, legislation – such as the bills recently proposed by Assemblywoman Lifton and Senator Seward – clarifying and codifying the time-honored right of municipalities to protect their residents and their communities, is needed now, before any new frack wells are drilled in New York.
As always, NRDC will continue to closely follow and be involved in any new developments on the New York home rule front, and expect updates as the battle continues. For now, though, there is real cause to celebrate.
More good news! Last Friday, another judge confirmed that municipalities have the right to zone out fracking entirely from their borders. Judge Cerio issued a ruling regarding the challenged fracking ban in Middlefield (discussed above), and similarly upheld the ordinance as a permissible use of the town’s zoning authority. (See full opinion here). No doubt this is not the end of story, as industry has threatened appeals and the Legislature continues to consider bills that would clarify municipalities' zoning rights over fracking. Stay tuned for further updates.