In a 5-2 decision, the state’s highest court, The Court of Appeals, has ruled that the current state law regulating oil and gas drilling operations does not supersede local zoning laws. In effect, the decision upholds lower court rulings that held communities can use local zoning laws to effectively ban natural gas development.
Writing for the majority, Judge Victoria Graffeo wrote that state law allows local governments to control their zoning codes to allow or disallow activities within their boundaries. The case involved bans in two upstate towns, Middlefield in Otsego County and Dryden in Tompkins County.
Industry supporters said the bans were a “huge obstacle” to the additional investment in the New York Marcellus Shale formation. The bans had been challenged by an organic dairy farmer near Cooperstown that held a natural gas lease on its farm, and the bankrupt Norse Energy Corp., which held gas leases in Dryden.
Brad Gill, executive director of the Independent Oil & Gas Association of New York, told the Albany Times Union that should the state decide to allow fracking, it would force companies to “navigate a patchwork of red lights and green lights.”
That would be enough to discourage some companies from coming to the state, he said. “Some companies have been waiting on the sidelines, watching for this decision,” he said. “Some people will not come to New York and spend money, or they will leave.”
The Business Council of New York State had joined with the Joint Landowners Coalition of New York, Inc., the National Association of Royalty Owners, NARO-NY, the Upstate New York Towns Association, Inc., and Southern Tier Residents for Economic Independence to file an amicus brief urging the court to overturn the lower court rulings in the case.
That brief argued the state has an overriding interest in the development and promotion of its oil and gas reserves, and that there is a need for uniformity across the state with a comprehensive state law that supersedes restrictive and inconsistent local laws and ordinances.
Industry supporters could seek state legislation pre-empting the local zoning decisions, but the prospects for enactment of such a law is highly unlikely to occur.
Chief Judge Lippman and Judges Read, Rivera and Abdus-Salaam concurred with Judge Graffeo’s decision. Judges Pigott and Smith dissented.