Ask a Lawyer: Hydrofracking

by Jay Girvin, Esq.,Girvin & Ferlazzo. P.C.,Albany, New York
Q. Do local municipalities have the right to ban hydrofracking?
High volume hydraulic fracturing, more commonly referred to as “hydrofracking” or “fracking,” is a process used to recover natural gas from underground shale deposits. It involves pumping a mixture of fresh water and chemical additives under high pressure into shale formations beneath the ground, typically by drilling multiple horizontal wells out from a vertical well. The mixture disturbs deposits of methane gas and is then returned to the surface, where it is stored or transported to retrieve the methane.
The question of whether hydrofracking should be allowed in New York has been the subject of considerable debate. Proponents of hydrofracking point to natural gas as a cleaner form of energy that can reduce dependence on imported energy sources while adding jobs and tax revenues to economically depressed areas of the state. Opponents, however, have raised concerns regarding potential environmental and health hazards associated with the process, including the risk of groundwater contamination.
Hydrofracking in New York has effectively been the subject of a state moratorium since 2008 as the Department of Environmental Conservation and Department of Health continue to study possible environmental and public health impacts. In the meantime, however, some municipalities have taken the affirmative step of amending their local zoning ordinances and codes to ban all activities related to natural gas drilling within their communities. At present, more than 50 municipalities have used their zoning codes to ban gas drilling.
These municipal bans obviously frustrate the economic interests of natural gas companies that have entered into lease agreements securing their right to drill on property located within the community, as well as that of the individual landowners who stand to benefit financially from the leases. Not surprisingly, then, the power and authority of municipalities to ban hydrofracking under their local zoning ordnances has been the subject of legal challenge. These challenges turn not so much on the perceived benefits and risks of hydrofracking, but rather on the relationship between state laws and local laws.
Municipalities have an interest in enacting local laws and ordinances to govern affairs within their communities, and the New York State Constitution protects that interest from state interference — but only to a point. Under the state constitution and state statutes, local governments generally have the power under “home rule” to adopt and amend local laws as long as they are not inconsistent with any general laws of the state legislature. Where a local law is found to be inconsistent with an existing general law, the local law will be deemed to be preempted and invalid.
Among the powers reserved to local governments is the authority to regulate the use of land within their community through zoning laws, which generally define which land uses will or will not be permitted in certain areas.  In two recent cases, the Appellate Division, Third Department, a mid-level appeals court, was asked to decide whether zoning amendments adopted by the Town of Dryden and the Town of Middlefield to ban hydrofracking were inconsistent with, and therefore preempted by, the provisions of Article 23 of the State Environmental Conservation Law.
Article 23 of the ECL, known as the “Oil, Gas, and Solution Mining Law,” not only regulates the development, production, and utilization of oil and gas resources throughout the state, but contains an express statement that its provisions are to supersede all local laws ordinances “relating to the regulation of the oil, gas and solution mining industries.” Based on its reading of the statutory provisions and legislative history, however, the Third Department concluded that the local zoning ordinances at issue did not constitute the “regulation” of natural gas drilling since they only addressed where such drilling could take place, and did not purport to address how the drilling should be conducted. The question of where drilling should be permitted within a municipality (even if the answer is nowhere) was therefore held to be a matter properly addressed through local zoning ordinances and not otherwise preempted by any state law.
The Third Department’s decisions in these two cases uphold the authority of a municipality to ban hydrofracking in its local zoning codes. The final word on the subject, however, will come from the state’s highest court — the Court of Appeals — which has recently agreed to hear and decide the case.

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