We don’t need to tell all you non-New Yorkers that the New York Court of Appeals is the state’s highest appeals court, do we? We watched enough Law and Order to know that what most everywhere else calls a “supreme court” is the “Court of Appeals” in the Empire State.
With that out of the way, we get to today’s case, a 5-2 decision by the New York Court of Appeals in two cases where “fracking” is the issue. Or, more accurately, two municipalities which used their zoning power to ban the practice. The court allowed them to do so, holding that New York’s Oil, Gas and Solution Mining Law, which “supersede[s] all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,” does not preempt the municipalities’ home rule zoning power.
Wait a minute, you say, isn’t a ban on fracking a “regulation of the oil, gas and solution mining industries?” Not quite, said the court, citing to an earlier case which interpreted similar “relating to” language about the mining industry as not preempting a municipality’s zoning powers. See Frew Run Gravel Products v. Town of Carroll, 71 N.Y.2d 126 (1987). These are “entirely different subject matter[s] and purpose[s],” and as we municipal law wonks understand, preemption generally only kicks in when the two laws asserted to be in conflict are really in conflict. As the court held in Frew Run:
In effect, local laws that purported to regulate the “how” of mining activities and operations were preempted whereas those limiting “where” mining could take place were not.”
Slip op. at 12. Thus, the language of the Oil, Gas and Solution Mining Law, is:
most naturally read as preempting only local laws that purport to regulate the actual operations of oil and gas activities, not zoning ordinance that restrict or prohibit certain land uses within town boundaries. Plainly, the zoning laws in these case are directed at regulating land use generally and do not attempt to govern the details, procedures or operations of the oil and gas industries.
Slip op. at 14.
A not entirely convincing rationale in our view, but given the prior decision’s interpretation of the same statutory language, the result couldn’t have come as much of a surprise. The court acknowleged the zoning laws “will undeniably have an impact on oil and gas enterprises” (ya think?) but this is merely “incidental control” that is a byproduct of a municipality’s power to zone land. Again, not very convincing, since a total ban on a practice — even if accomplished pursuant to a municipality’s zoning power — sure looks to this non-New Yorker like an “ordiannce relating to” oil and gas. Even that argument, adopted by the dissent, was rejected the court:
As a fallback position, Norse and CHC suggest that, even if the OGSML’s supersession clause does not preempt alllocal zoning laws, it should be interpreted as preempting zoning ordinances, like the two here, that completely prohibit hydrofracking. In their view, supported by the dissent, it may be valid to restrict oil and gas operations from certain residential areas of a town — much like the zoning law in Frew Run — but an outright ban goes too far and cannot be seen as anything but a local law that regulates the oil and gas industry, thereby running afoul of the supersession clause. But this contention is foreclosed by Matter of Gernatt Asphalt Prods. vTown of Sardinia (87 NY2d 668 [1996]), our decision following Frew Run.
Slip op. at 25.
There’s more in the opinion, of course, and the court goes through the statutory scheme and legislative history analysis, but in the end, it looks to us that the court has reaffirmed the strong home rule zoning powers of New York municipalities.
[Sidebar: A book recently published by our section of the ABA, Beyond the Fracking Wars, and the North Ameican Shale Blog are our go-to resources for all things fracking.]