The New York Court of Appeals, the state’s highest court, recently decided that county-wide fracking bans are not barred by §23-0303(2) of New York’s Environmental Conservation Law. The law contains a supersession clause that holds that state law shall “supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries.”

The 5-2 court held that the supersession clause did not affect local laws that zoned where mining may or may not be conducted. Instead, it only affected local laws or ordinances that supplanted the state’s role as a regulator of operational, safety, and technical aspects of statewide oil and gas activities.
The majority stressed its neutrality on the issue of fracking, and claimed that “the discrete issues before us, and the only one we resolve today, is whether the state Legislature eliminated the home rule capacity of municipalities to pass zoning laws that exclude oil, gas, and hydrofracking activities in order to preserve the existing character of their communities.”

Areas of upstate New York sit atop the Marcellus Shale formation. New York has maintained a fracking moratorium since 2008. Approximately 30 cities in New York have enacted fracking bans, and upwards of 80 others are considering them.

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