In a 5-2 ruling on June 30, New York’s highest court rendered a decision in a hotly contested case regarding the power of municipalities to ban hydraulic fracturing. The state’s Court of Appeals addressed two cases brought with respect to local zoning laws passed by the towns of Dryden and Middlefield. The specific legal issue was whether a locality’s zoning laws were preempted by New York’s Oil, Gas, and Solution Mining Law (OGSML). The court found that the zoning laws were not preempted, and that a municipality does, in fact, have the right to ban hydraulic fracturing.

It is too early to determine the impact, if any, that the decision will have on the future of hydraulic fracturing in New York. On one hand, approximately 70 towns have passed resolutions banning the practice. A number of those towns, however, are not within the area where shale gas would be extracted and therefore those bans are symbolic only. Furthermore, many other towns in the state have passed resolutions that expressly permit hydraulic fracturing.  Meanwhile, New York is still debating whether, when, and to what extent it will permit high-volume hydraulic fracturing.

Assuming New York permits hydraulic fracturing in the relatively near future, the practice will be a patchwork system based on whether any specific town has prohibited the practice. Of course, those towns that have ruled against hydraulic fracturing may lift their ban at any time.

For the latest news on legal developments arising out of hydraulic fracturing, as well as related commercial or litigation issues, visit Goldberg Segalla’s Shale Watch blog.

If you have questions about this decision, or would like to discuss its possible impact on your business, please contact:

• Andrew J. Scholz (914.798.5442; ascholz@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Hydrofracking and Municipal and Governmental Liability Practice Groups.