In a 5-2 vote, New York’s highest court – the Court of Appeals – upheld the power of local governments to ban, through adoption of local laws, high-volume hydraulic fracturing. The Court made its ruling in the face of broad statutory language in New York’s Oil, Gas and Solution Mining Law (OGSML) that preempts “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries.” The Court relied heavily on its 1987 decision in Matter of Frew Run Gravel Products v. Town of Carroll, 71 N.Y.2d 126 (1987), in which the court, interpreting a preemption provision contained in the State’s mining law, drew a distinction between laws regulating how mining is conducted versus laws regulating where the activity could take place. The court found that the seemingly broad language contained in the OGMSL preemption provision only spoke to laws regulating “the actual operations of the oil and gas industries.” The Court thus rejected the Industry Appellants’ main argument that a ban does constitute the regulation of actual operations. The court found that, while local zoning bans would “undeniably have impact on the oil and gas enterprises,” the bans at issue regulated land use in general and did not attempt to regulate the details, procedures and operations of the oil and gas industries. The court drew heavily on its view that the regulation of local land use is “one of the core powers of local governance.”Continue Reading Court of Appeals’ Dryden/Cooperstown Decision – Sanctity of Local Zoning Upheld, But Does It Doom NY Fracking?