From Steven C. Russo of GT New York:

In a much awaited ruling, an upstate New York appellate court unanimously upheld the right of local governments to zone out gas drilling.  The case, Norse Energy v. Town of Dryden, was brought by a gas company seeking to nullify a very broad ban of gas drilling adopted by the Town of Dryden in anticipation of New York State greenlighting high-volume hydraulic fracturing in New York State.

The court found that the provision in the New York’s Oil, Gas and Solution Mining Law superseding “all local laws and ordinances relating to the regulation of the oil, gas and solution mining industries”  did not preclude a total bar to gas and petroleum activities through a locality’s zoning power.  The specific ordinance at issue had banned “all activities relating to the exploration for, and production and storage of, natural gas and petroleum.”  The decision went off on the interpretation of the word “regulation,” with the court finding that the only laws precluded by this provision of law were local laws regulating the rules and procedures of the industry, not a total bar to exploration, production and storage activities on zoning principles.  The strong presumption that local governments have the right to regulate land use within its jurisdiction clearly played a strong role in the court’s reasoning.  The superseding provision in the law also carved out local laws relating to uses of roads, an exception that arguably cuts against the court’s reasoning because such carve out would appear to be unnecessary if the scope of the preemption only went to the means and method of gas drilling.

The court also found that there was no implied preemption in New York’s oil and gas law.  Petitioners had argued that local bans would make New  York’s spacing unit regulatory scheme, which authorizes the payment of royalties based on the creation of drilling spacing units of up to 640 acres, unworkable.  The court disagreed, finding that the spacing units could accommodate the existence of local bans.  That reasoning, however, ignores the fact that spacing units can and often do move across municipal boundaries.  An open question also exists as to whether a local government, using zoning, can ban subsurface drilling within its jurisdiction.  It would be difficult to find a land use rationale for precluding subsurface drilling, but the statute at issue clearly does ban such drilling and the court did not address that particular point.

There was a companion case, Cooperstown Holstein Corp. v. Town of Middlefield, where the local court also upheld the right of a local government to ban gas drilling via zoning.  That decision was also affirmed based on the reasoning of Dryden.  These two decisions confirm the primacy of local zoning in New York and the hostility of New York courts to preemption of that right.  It will be interesting to see if the Court of Appeals chooses to take up this matter and decide the controversy once and for all.

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Photo of Caleb Holmes Caleb Holmes

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Caleb has litigated such matters through trial and has also helped clients negotiate and settle matters. He has worked with clients on cases involving a wide variety of contaminants, including but not limited to PCBs, PFAS, and dioxins. Caleb also has broad experience litigating complex commercial litigation, including products liability and mass tort/toxic tort matters. He has a depth of experience with all aspects of discovery, including work with experts, taking and defending depositions, motion practice, trial preparation and settlement negotiation.

Caleb provides practical advice to clients in the acquisition and disposition of businesses and assets and the re-development of brownfield sites. He works with clients to achieve compliance with state-specific voluntary cleanup programs, including Pennsylvania’s Land Recycling Program (Act 2).

Caleb counsels clients on compliance with a broad range of federal and state environmental laws, including RCRA, the Clean Air Act, the Clean Water Act, and a host of other federal and state environmental laws.

In addition to his legal work, Caleb is active in various professional and civic organizations. He is currently serving as the Council’s Secretary for the Pennsylvania Bar Association’s Environmental and Energy Law Section.