State “Preemption” Arguments Asserted In New York Article 78 Proceeding
A recent legal challenge to a town’s local zoning ordinance banning hydraulic fracturing (“fracking”) has been commenced in Tompkins County, New York. In Anshutz Exploration Corporation v. Town of Dryden (Supreme Court, Tompkins County), the petitioner Anshutz Exploration Corporation, a Denver-based energy company that owns numerous gas leases in the town of Dryden, commenced a New York Civil Practice Law and Rules Article 78 proceeding against the Town of Dryden. The petitioner argues, in sum, that Dryden’s zoning ordinances banning fracking within the town are preempted by New York State’s Environmental Conservation Law and its “extensive regulatory program.” A copy of the complaint can be found here. The proceeding is pending before Justice Phillip Rumsey and a hearing is currently scheduled to be heard on November 4, 2011.
Given that dozens of New York municipalities, towns and villages have passed similar ordinances dealing with fracking and given the ongoing raging debate regarding fracking and its possibilities for energy security versus the potential impact on the environment, the Anshutz case will undoubtedly be closely monitored by the energy industry, environmental groups and localities.
Finally, although the matter involves application of New York State’s preemption law, the Anshutz case is likely to be followed throughout the Northeast since similar preemption arguments have been and may be asserted in other states where cities and towns have passed similar ordinances banning fracking.