Zoning Laws, A New Weapon in the War Against Fracking
July 08, 2014
By Michelle Bamberger & Robert Oswald
In our soon-to-be released book, The Real Cost of Fracking: How America’s Shale Gas Boom is Threatening Our Families, Pets, and Food, we discuss the laws that affect local control of gas drilling in New York and Pennsylvania. At the time of writing, two cases were before the New York State Court of Appeals that would effectively decide if individual towns in New York could ban gas drilling using zoning ordinances (Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp. USA vs. Town of Dryden et al. and Cooperstown Holstein Corporation vs. Town of Middlefield). On June 30, 2014, the decision was announced by the Court of Appeals in favor of the Towns of Dryden and Middlefield. It is important to note that “towns” in New York are subdivisions of counties, and constitute most of the land that is not a city or Indian reservation.
What is at issue is the reading of the “supersession clause” of the NYS Oil, Gas and Solution Mining Law (OGSML), which is part of the Environmental Conservation Law 23-0303. The relevant clause in the law is:
The provisions of this article [i.e., the OGSML] shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law
The large issue was the meaning of the word “regulation.” That is, New York has a long tradition of home rule, and towns can create and enforce local laws, including zoning regulations, except when in conflict with state law. If zoning were to be considered a form of regulation, then the town-enacted zoning laws banning gas drilling would be in conflict with state law. However, the town bans were developed based on a careful legal analysis by a team of lawyers, Helen and David Slottje (Community Environmental Defense Council), who, drawing on significant legal precedents, asserted that zoning was a land use issue independent of the regulation of an industry. That is, regulation would determine, among other things, how an industry operates, what safety regulations are in place, and how it conducts business. Zoning simply determines more generally what uses are permitted within particular parcels in a town, and cannot be considered regulation of any specific industry. If one accepts the idea that zoning is not regulation, then why would the legislature specifically give the local government jurisdiction over roads and real property tax law in this clause of the OGSML? Would that not restrict the rights of the town to these two narrow interests relative to oil, gas and solution mining? The Court ruled that the clause giving the towns the right to control roads and taxes actually refers to the regulation of the industry, that is, the state law supersedes all local regulations except roads and taxes but does not prevent local control of zoning. The full decision can be accessed here.
At this time, high-volume horizontal drilling with hydraulic fracturing is effectively banned by lack of a generic environmental impact statement in New York and is awaiting a NYS Department of Health review of the potential health impacts. In any event, the decision was hailed as a major victory for the grassroots efforts to ban hydraulic fracturing in New York State permanently. Tom West, the lawyer for Norse Energy, was quoted in the New York Times: “In the future, he said, companies will have to weigh whether to invest ‘the tens or hundreds of millions of dollars required to develop the resource, only to be at risk of a municipal ban.’”
What is ironic about this statement is that many of the major oil and gas producing states, such as Texas, Oklahoma, and Pennsylvania, currently have some form of local zoning of drilling operations. The difference in New York is not simply the fact that towns can now use zoning to restrict drilling, but, more importantly, the large-scale resistance to unconventional oil and gas extraction in New York will ensure the extensive use (relative to other states) of local zoning to restrict locations that drilling can take place in the event that the current de facto moratorium is lifted.
Michelle Bamberger & Robert Oswald are the authors of The Real Cost of Fracking: How America’s Shale Gas Boom is Threatening Our Families, Pets, and Food. Bamberger is a veterinarian and the author of two books on first aid for cats and dogs. Oswald is a professor of molecular medicine at Cornell University and the recipient of Fulbright and Guggenheim fellowships. They serve on the advisory board of Physicians, Scientists, and Engineers for Healthy Energy. Bamberger and Oswald live in Ithaca, New York.