Will Fracking Become the Exception to the Rule of Local Zoning Control in New York State? in Westlaw Journal Environmental

Eileen D. Millett, Counsel in the firm's Litigation and Health Care and Life Sciences practices, in the New York office, wrote an article titled "Will Fracking Become the Exception to the Rule of Local Zoning Control In New York State?" David J. Clark, EBG Senior Counsel, also contributed to the article.

Following is an excerpt:

Middlefield and Dryden, two towns in upstate New York, have successfully applied the brakes to exploratory drilling for natural gas, thus far. On May 2 the Appellate Division, 3rd Department, upheld two state Supreme Court decisions banning fracking within the boundaries of those towns, in Norse Energy Corp. v. Town of Dryden and Cooperstown Holstein Corp. v. Town of Middlefield.

How did the towns accomplish the ban, and are they on solid legal ground? Also, what, if anything, can or should the state do to further enhance the development of natural gas?

Drilling for natural gas, which has gone on for decades in the west, has recently expanded rapidly in the east, largely due to a technique known as hydraulic fracturing, or hydrofracking. For property owners, leasing land used for gas drilling has created an economic boon. In addition, these drilling operations could bring jobs to a perennially economically depressed portion of upstate New York, and unlocking more domestic gas resources could lessen the nation's dependence on foreign energy sources.

At the same time, hydrofracking has heightened concerns about contamination of well water, air pollution and hazardous waste, as well as other environmental concerns.

New York has a longstanding tradition of upholding the rights of municipalities to control land use within their boundaries, but should fracking be looked at differently? Should energy independence be the primary criteria for allowing fracking in New York State? Does economic opportunity for an economically depressed upstate New York justify carving out an exception or makingallowances?

While oil and gas exploration and development have traditionally been within the purview of the states, local governments in New York have long enjoyed rights to control land use within their borders, a tradition rooted in the state's constitution and in statute.