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Foundation asks New York court to invalidate fracking bans

By Bob Downing Published: January 15, 2014

A press release received today from the Washington Legal Foundation:

WLF ASKS N.Y. HIGH COURT TO INVALIDATE
MUNICIPAL ZONING BANS ON FRACKING

Norse Energy Corp. USA v. Town of Dryden
New York Court of Appeals

“While home rule is an important legal principle, the New York Legislature has the authority to preempt any delegated power. The Town of Dryden’s zoning laws cannot supersede legislation appropriately enacted at the state level, nor can it undercut the Legislature’s policy decision to craft a uniform solution to a state-wide issue.”—Cory Andrews, WLF Senior Litigation Counsel

ALBANY, NY—The Washington Legal Foundation (WLF) today asked the New York Court of Appeals to overturn a decision that threatens to allow N.Y. municipalities to ban oil and gas exploration locally, even though the state legislature has expressly preempted all oil and gas regulation.

In a brief filed in Norse Energy Corp., USA v. Town of Dryden, WLF argued that under New York’s Oil, Gas and Solution Mining Law (“OGSML”) the New York Legislature reserved to itself exclusive jurisdiction to regulate the oil and gas industry. As a result, the OGSML expressly preempts all local zoning ordinances that seek to ban oil and gas exploration within town limits. WLF also argued that the OGSML impliedly preempts all such ordinances because the two laws irreconcilably conflict.

In recent years, over 100 New York municipalities have enacted bans or moratoria on oil and gas activities, including hydraulic fracturing, resulting in protracted litigation over whether localities have the legal authority to do so. In its brief, WLF expressed concern that a lack of predictability and consistency regarding stakeholders’ settled expectations will destabilize the oil and gas industry.

Upon filing its brief, WLF issued the following statement by Senior Litigation Counsel Cory Andrews:

“While home rule is an important legal principle, the New York Legislature has the authority to preempt any delegated power. The Town of Dryden’s zoning laws cannot supersede legislation appropriately enacted at the state level, nor can it undercut the Legislature’s policy decision to craft a uniform solution to a state-wide issue.”

WLF’s brief was filed with the pro bono legal assistance of Deborah Misir of the law firm Lally & Misir LLP.

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Energy In Depth, a trade group.

Marcellus and Utica Shale Resource Center by Ohio law firm Bricker & Eckler.

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Landman Report Card, a site that looks at companies involved in gas and oil leases.FracFocus, a compilation of chemicals used in fracking individual wells as reported voluntarily by some drillers.

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Shale Sheet Fracking, a Youngstown Vindicator blog.

National Geographic's The Great Shale Rush.

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Buckeye Forest Council.

Earthjustice, a national eco-group.

Stop Fracking Ohio.

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Fracking: Gas Drilling's Environmental Threat by ProPublica, an online journalism site.

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Allegheny Front, environmental public radio for Western Pennsylvania.