Local fracking bans challenged in court

Daniel Foster/via flickr
June 4, 2014

The challenges to zoning laws that ban natural gas drilling in towns across New York had their final day in court.

The issue is whether or not local governments in New York can use zoning laws to prevent drilling and hydraulic fracturing within their borders. The arguments Tuesday were focused on the language used in Article 23 of the Environmental Conservation Law, adopted in 1981, which gives the state sole power to regulate oil and gas operations.

At the Court of Appeals, Albany lawyer Tom West argued against the town bans, saying based on Article 23, local authority was limited to regulating roads and setting property taxes. Chief Judge Jonathan Lippman cut him off mid-sentence.

“They were specifically granted limited jurisdiction.”

“Isn’t zoning fundamental to the power of local municipalities?”

“Your honor, I think that…”

“Can that just be taken away so easily and without expressly saying that you’re taking it away?”

“We believe it can…”

Deborah Goldberg from Earthjustice argued on behalf of the towns’ right to ban fracking. Goldberg argued that if lawmakers meant to override local zoning laws, what’s known as express preemption, when it set the state’s oil and gas policy, it would have done it. She was also interrupted by Judge Lippman.

“Your honor, the legislature knows how to do express preemption when it wants to do so…”

“Yea, but look at the plain language. What is it that gives you pause in the language that’s there to think that every county or every town can go and you know make its own ban or whatever it is?”

Goldberg argued that the law prevents towns from regulating the industry. But she said a land use law is different than regulation of a business and so it’s allowed.

Judge Robert Smith questioned John Henry, the lawyer for the Town of Middlefield, which passed one of the first bans, whether this was too much power in the hands of a town board.

“Sounds to me like you’re saying you can do anything you want if you call it zoning.”

“You cannot tailor a law that specifically relates to the industry…”

“You don’t think your law relates specifically to the industry?”

“No it does not…”

“They had a whole meeting to say let’s keep this industry out of this town.”

Lower courts have so far ruled in favor of the towns. But they relied on previous Court of Appeals decisions that dealt with the use of zoning laws to keep out other types of industry.

Now it’s up to the Court of Appeals to decide whether the same rationale can be applied to the oil and gas industry.

If they rule against local bans, dozens across New York would fall. Goldberg from Earthjustice said that would give unprecedented power to the oil and gas industry in New York.

“The legislature can take away the right to zone, unquestionably, and it has done so in some cases as we have seen. But when it does so, it puts in place substitute protections for the interests that are protected by zoning. It doesn’t leave the municipalities entirely at the mercy of the industry.”

The court’s session ends in July, a decision could come by then or when they reconvene in the fall.