On August 29, 2013, New York state’s highest court agreed to hear an appeal of 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 and affirming a lower court’s decision that certain amendments to the Town’s zoning ordinance were not preempted by the state’s Oil, Gas and Solution Mining Law (“OGSML”). Oral arguments are scheduled for June 3, 2014 (Case No. APL-2013-00245, New York State Court of Appeals).

A number of interested parties on both sides of the question have filed amicus briefs with the Court of Appeals.

  • On behalf of the 1.6 million residents of Manhattan, the Manhattan Borough President asserted that “municipalities are far better situated than the State to discern what land use is appropriate for their territory.”  
  • According to the Independent Oil and Gas Association of New York, Inc., the OGSML “unequivocally states that all local ordinance relating to oil and natural gas development are preempted.”
  • A group of 26 businesses argued that “a municipality’s home rule authority to protect sustainable enterprises through the exercise of State-delegated zoning powers over potentially detrimental land uses” must be preserved.
  • The American Petroleum Institute and the Chamber of Commerce of the United States of America assert that the town’s ordinance is invalid because it conflicts with the structure and purpose of the OGSML which vests exclusive authority over drilling operations to the state’s Department of Environmental Conservation and because it puts “at risk the efficacy of drilling across the State…”
  • Several groups of landowners, farmers, labor unions, municipalities, and businesses joined to file an amicus brief urging that “decisions regarding the production of New York’s natural resources must be made by the experts at the State level and not by New York’s municipalities, each possessing varying degrees of expertise, and each making decisions in an individual vacuum without consideration for the important State interests and policies at issue.” 
  • Siding with the Town of Dryden, a group of land-use legal experts opined that a “presumption against preemption of local zoning laws is especially strong where the allegedly preemptive state law makes no provision for protecting the quiet enjoyment of land. It is simply implausible to infer that the state legislature intentionally conferred on the gas and oil extraction industry a statutory right to site a towering drill and accompanying truck traffic, waste pits, compressor stations, and the like next door to a quaint bed-and-breakfast in a rural hamlet or single-family home in a quiet residential suburb.”

For additional information, see prior blog articles “Two New York Courts Uphold Local Bans on Hydraulic Fracturing,” “New York appeals court upholds local bans on hydraulic fracturing,” and “Do state energy laws preempt municipal zoning ordinances banning oil and gas development?

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