New York’s highest court has determined that towns could use local zoning ordinances to ban hydraulic fracturing (fracking).  The decision, issued June 30, 2014, is an important development in the debate about how fracking activities can be effectively “regulated” at the local level.   The New York Court of Appeals determined that the ordinances banning fracking were reasonable exercises of the towns zoning authority.  According to the Court of Appeals:  [the towns] engaged in a reasonable exercise of their zoning authority . . . when they adopted local laws clarifying that oil and gas extraction and production were not permissible uses in any zoning districts.”

The towns argued that they had authority to ban hydraulic fracturing under a New York law allowing towns to enact zoning ordinances to foster the “health, safety, welfare, or the general morals of the community.” The defendants argued that the ordinances were de facto regulations that must yield to a New York statute providing for the comprehensive regulation of energy.  The state statute included a preemption clause that, the defendants argued, displaced all local zoning ordinances. Alternatively, the defendants argued that the state statute did not allow for local zoning laws that entirely banned or forbid hydraulic fracturing.

These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits.

New York’s high court agreed with the towns holding that the subsequent state statute, enacted long before the hydraulic fracturing debate developed, did not evidence a clear intent to preempt all local zoning laws directed at energy companies.  The court was careful, however, to explain that its decision was not a referendum on fracking: “[a]t the heart of these cases lies the relationship between the State and its local government subdivisions, and their respective exercise of legislative power. These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits. These are major policy questions for the coordinate branches of government to resolve.”

The case is Wallach v. Town of Dryden, 23 N.Y.3d 728, 739 (N.Y. 2014) reargument denied, Case No. 2014-867, 2014 WL 5366261 (N.Y. Oct. 16, 2014).  A link to the Court of Appeals decision can be found here.

An excellent article about the case and its background was published in the November 2014 ABA Journal, which can be found here.