On May 2, 2013, a New York state appeals court issued an order upholding a local ordinance banning all activities related to the exploration for, and production or storage of, natural gas and petroleum in the Town of Dryden, New York. The court affirmed the judgment of the lower court, entered on February 22, 2012, which held that certain amendments to the Town of Dryden zoning ordinance are not preempted by New York State’s Oil, Gas and Solution Mining Law (“OGSML”). New York State’s highest court (Case No. APL-2013-00245, New York State Court of Appeals) agreed to hear an appeal of this decision. See prior blogs, New York appeals court upholds local bans on hydraulic fracturing and NewYork Court of Appeals to consider local bans on hydraulic fracturing.
The movant filed its brief (see attached) on October 28, 2013, asserting that  “the Appellate Decision allows every municipality in the State of New York to ban any and all oil and gas development. The inevitable result is zero resource recovery, the ultimate in waste, and the obliteration of mineral owners’ correlative rights. This result starkly conflicts with the language and policies of the OGSML and the Energy Law and, therefore, cannot stand.”
The Town of Dryden respondedin a brief dated December 13, 2013, arguing that the “OGSML does not expressly preempt a locality’s right to enact a zoning ordinance that regulates land use generally and designates oil and gas mining as a prohibited use within municipal borders.”  The Town urges that the two separate, distinct regulatory schemes (the Town’s zoning ordinances and the policies of the OGSML) can “harmoniously coexist.” 
On December 13, 2013, the court received an amici curiaebrief (see attached) that was filed on behalf of 52 towns and villages in New York, the Association of Towns of the State of New York, the New York Conference of Mayors, and the New York Planning Federation. These interested parties asserted that a local municipality has “the constitutionally guaranteed right…to create and preserve its own community character through generally applicable land use planning and zoning laws.” New York’s energy law “preempts only local regulation of the operations of the oil and gas industry, not local land use laws that govern whether and where such operations may take place within a municipality’s borders.”
The reply brief is due January 6, 2014. Both sides have requested oral arguments.

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright’s Energy Practice Group.