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Sep 27 / Chambers

First Lawsuits Filed Over Local New York Shale Gas Drilling Bans

Photo courtesy flickr By Abeeeer

In what could be precedent-setting cases for local governments in New York State, a gas company and landowners recently filed separate challenges to town bans on shale gas extraction via horizontal drilling and hydraulic fracturing (“hydrofracking”). On September 16, 2011, a Denver-based gas company, Anschutz Exploration Corporation, filed a lawsuit against the Town of Dryden in state Supreme Court, New York’s trial-level court, seeking to invalidate a recent amendment to Dryden’s zoning ordinance that would ban all shale gas drilling within the town’s borders. Dryden, a rural suburb of Ithaca with a population less than 15,000, is among several New York municipalities to amend their zoning ordinances to ban shale gas drilling and hydrofracking activities.

A day earlier, on September 15, 2011, a group of Middlefield, New York, landowners, led by farmer Jennifer Huntington, filed a similar lawsuit challenging Middlefield’s gas drilling ban. Middlefield’s law – and the argument against it – is nearly identical to the law at issue in the Dryden case. Plaintiffs in both actions claim that the bans violate state conservation law, which expressly preempts any local laws “relating to the regulation of the oil, gas, and solution mining industries.” This provision conflicts with local government’s “home-rule” authority, which gives towns the power to create land-use policies, including restrictive zoning ordinances.

Dryden defends its ordinance, asserting that it does not impose a ban on a single industry. Dryden’s amendment states that it “is not directed at the regulatory scheme for the operation of natural gas wells [under the state conservation law],” but rather “addresses land use and nuisance concerns” as well as concerns over health and the environment. 1

New York appellate courts have never reviewed the scope of the state conservation law’s preemption provision, but New York’s highest court has twice ruled that a similar statute, the Mined Land Reclamation Law, does not preempt local zoning ordinances.

1 http://newsandinsight.thomsonreuters.com/New_York/News/2011/09_-_September/Fracking_lawsuit_could_set_precedent_for_local_drilling_bans.

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