First Lawsuits Filed Over Local New York Shale Gas Drilling Bans
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.