New York ~ Home Rule Rules ~ Home rule upheld in a Hydrofracking case.

  Fracking has been a controversial topic in New York State. The controversy basically breaks down into two issues economic benefits versus environmental and public health issues.

Currently federal regulations do not adequately address many of the potential risks that may be associated with Hydrofracking and Industrial wind development. Leaving the state and local government the responsibility of their regulation.

With both Hydrofracking and Industrial Wind you have a situation where those that stand to benefit may not be within the local jurisdiction . However, the burden of environmental and health impacts associated with fracking and Industrial Wind are carried entirely by the local jurisdictions.

Recently Home rule was upheld in a Hydrofracking case.

The Towns of Dryden and Middlefield consider hydraulic fracturing for natural gas to be a heavy industrial use that conflicts with their comprehensive plan and/ or is not an appropriate land use for them. Consequently, these two towns enacted zoning laws outlawing hydraulic fracturing within their borders.

The drilling industry and a landowners challenged the zoning bans in two lawsuits filed in the State Supreme Courts in Tompkins and Otsego Counties.

The courts in these cases were asked to determine for the first time whether a municipality has the legal authority to use its zoning laws to prohibit natural gas drilling within its borders, or whether its constitutionally guaranteed zoning authority is preempted by the State Environmental Conservation Law (ECL). In contrast, the towns argued that the statute was not intended to preempt generally applicable zoning laws that merely regulate land uses, not the specific activity of gas drilling.

Beginning with the principle that local municipalities are granted significant rights under the New York Constitution to determine what is in the best interests of their residents’ health, safety and welfare, the Court emphasized that one of the most fundamental exercises of these rights is to foster productive land use by enacting zoning laws.

The Court stated:

“Regulation is commonly defined as ‘an authoritative rule dealing with details or procedure.’ The zoning ordinance at issue, however, does not seek to regulate the details or procedure of the oil, gas and solution mining industries. Rather, it simply establishes permissible and prohibited uses of land within the Town for the purpose of regulating land generally.

While the Town’s exercise of its right to regulate land use through zoning will inevitably have an incidental effect upon the oil, gas and solution mining industries, we conclude that zoning ordinances are not the type of regulatory provision that the Legislature intended to

be preempted.”

The Court also refused to accept the industry’s and landowner’s contention that local zoning bans on hydraulic fracturing conflict with the policies underlying the provision of the Environmental Conservation Law stating that the State should minimize waste of its natural resources.

 The Court recognized that this statement of policy  “does not equate to an intention to require oil and gas drilling operations to occur in each and every location where such resource is present, regardless of the land uses existing in that locale.”  Instead, as the Court acknowledged, the policies require a balancing of the rights of all property owners, including the general public, which is best promoted by allowing municipalities to decide what is in the best interests of their residents.

 In sum, in a landmark decision for the rights of municipalities to decide what type of land uses should be permitted and/or prohibited within their borders, the Court held that local municipalities have the constitutional right to protect their community character through the use of zoning powers. With the Third Department’s decision, municipalities were rightfully provided an additional measure of comfort that no specific business concern is entitled to a unique exemption from their generally applicable zoning laws merely because it is part of the oil and gas industry.

This ruling may be significant concerning BP and Bob Dudley's Dilemma ~ How to subvert Cape Vincent's  protective zoning law

   In their Preliminary Scoping Statement (PSS) filed on April 19,   BP used a reference to suggest that portions of the Town's zoning law should be waived   " ... the Public Service Law general preemption of local laws should relieve CVWF of the obligation to comply with this section."  The Department of Public Service (DPS) in its review of BP's PSS (p.46) asked for clarification of BP's general preemption statement ~ "The revised PSS should clearly identify what CVWF means when asserting that, "the Public Service Law general preemption of local laws" will relieve the applicant of its obligations to comply with a local standard" 

Because the waiver of local laws is the heart of BP's development of their Cape Vincent Wind Farm, the Town of Cape Vincent requested the same clarification and identification as DPS.

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Only one final fight remains in this battle between the right of municipal home rule powers to

define community character through zoning and the natural gas industry’s contention that these

powers are usurped by State Law. This will be in New York’s highest appellate court – the Court of Appeals. We anticipate that the industry and landowner in Norse Energy Corp. USA v. Town of Dryden and Cooperstown Holstein Corp. v. Town of Middlefield will seek a final review of the third Department’s decision from the Court of Appeals. If the Court accepts the case, its decision will, once and for all, finally determine the extent of home rule authority with respect to oil and gas drilling.

 Link to Hydrofracking case  summary