In the Matter of Norse Energy v. Town of Dryden, the Appellate Division upheld town zoning ordinances barring hydraulic fracturing. Fracking or hydraulic fracturing is the controversial process of extracting natural gas from shale rock layers deep within the earth. The process entails, among other things, deep drilling that frees gas from within the rock by injecting wells with high pressured water that is laced with toxic chemicals. Opponents maintain that the process contaminates the water supply, impairs the health of local residents and is damaging to the environment. Proponents maintain that the process is a safe and effective method to tap into an unused energy source.
In the court's decision Justice Karen Peters stated, "While the Town's exercise of its right to regulate land use through zoning will inevitably have an incidental effect upon the oil, gas and solution mining industries, we conclude that zoning ordinances are not the type of regulatory provision that the Legislature intended to be preempted by the [Oil, Gas and Solution Mining Law]."
Norse Energy argued that NYS Environmental Conservation Law 23-0303(2) superceded all local laws and ordinances relating to the regulation of the oil, gas and mining industries. The court rejected this argument, finding that the Town ordinance did not regulate but rather established permissible and prohibited uses of land within the Town. The court concluded that, "We find nothing in the language, statutory scheme or legislative history of the
statute indicating an intention to usurp the authority traditionally delegated
to municipalities to establish permissible and prohibited uses of land within
their jurisdictions. In the absence of a clear expression of legislative intent
to preempt local control over land use, we decline to give the statute such a
construction." Norse Energy respectfully disagreed with the court's decision and plans to appeal.
Long Island Lawyer
Paul A. Lauto, Esq.