Home Rule authority to ban or restrict the location of Marcellus shale gas development
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The Appellate Division of NYS Supreme Court (Albany) has upheld the authority of two New York counties  to limit where development of Marcellus shale natural gas resources may take place, or to ban such development altogether under their home rule powers. "[A] total ban on the extraction of natural resources is permissible where the [state] Legislature has not restricted municipal authority to regulate permissible uses of land," according to Tomkins County Judge Phillip R. Rumsey. Anschutz Exploration Corp. v. Town of Dryden and Town of Dryden Town Bd., No. 2011-0902 (Feb. 21, 2012).

Judge Rumsey found that, like the state's "Mined Land Reclamation Law," governing gravel mining and other types of surface extraction, the state's "Oil, Gas and Solution Mining Law," (Envtl. Conserv. L.  § 23-0303), governing extraction of oil and gas, including fracking, does not preempt zoning laws like Dryden's which regulate land uses in general. Only local regulation of how extraction operations are undertaken, not whether or where, is preempted.

Otsego County Judge Donald F. Cerio, Jr. ruled that home rule powers authorize the Town of Middlefield to include in its zoning code the following restrictions: "Heavy industry and all oil, gas or solution mining and drilling are prohibited uses..." Cooperstown Holstein Corp. v. Town of Middlefield, No. 2011-0930 (Feb. 24, 2012). This provision of the local code, Judge Cerio found, "effectively banned oil and gas drilling within the geographical borders of the township."

The purpose of the state law governing oil and gas extraction is to provide for orderly drilling. This makes DEC the authority for determining such things as well spacing units and management of extractive wastes. However, Judge Cerio found nothing in the state law or its intent that would preempt a local municipality's right to enact legislation pertaining to land use, including the use of land for fracking. For example, Envtl. Conserv. L. §23-0901, governing "compulsory integration," does not preempt local authority to control land use for the benefit of the whole community.

Rather, the phrase "this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries," found in Envtl. Conserv. L.  § 23-0303, is limited to local laws that attempt to regulate the practices of the oil and gas industry. Restricting whether or where the industry may operate is not regulation of industry practices. Therefore, Judge Cerio concluded as follows:

"The state maintains control over the 'how' of such [oil and gas exploration] procedures while the municipalities maintain control over the 'where' of such exploration.' . . . [Middlefield's] Zoning Law is an exercise of the municipality's constitutional and statutory authority to enact land use regulations even if such may have an incidental impact upon the oil, gas and solution drilling or mining industry."

Resources for understanding the impacts of Marcellus Shale natural gas
well drilling in New York


updated June 4.2013