By Myriah V. Jaworski

On Monday, New York’s Court of Appeals, its highest court, upheld the power of municipalities to prohibit hydraulic fracturing (“fracking”) within their boundaries.

The case, previously discussed here, concerned efforts by two towns to ban fracking within their boundaries after several town residents signed oil and gas leases allowing for exploration and extraction on their land.

The power of local governments to pass laws restricting uses of land within their boundaries is known as “home rule,” and is recognized in the state’s constitution and by statute.  Here, the towns of Dryden and Middlefield utilized their home rule powers to amend their zoning codes to explicitly prohibit fracking.

But Norse Energy, the predecessor to the energy company who executed leases with town residents, argued that the towns zoning amendments were preempted by a provision of the state’s Oil, Gas and Solutions Mining Law (OGSML).  The OGSML provision, known as a supersession clause, disallowed towns from regulating oil and gas activities within their boundaries.  The energy companies argued that the OGSML’s preemption of oil and gas regulations by municipalities rendered the municipal bans at issue void.

The Court of Appeals disagreed.  Narrowly reading the OGSML supersession clause, the Court held in a 5-2 opinion that if the state legislature intended to prohibit the home rule power of local municipalities in that clause, it would have done so explicitly and in plain language, and it did not.  Further bunting the issue to the state legislature, the Court closed its opinion by noting that the issues raised on appeal were “major policy questions for the coordinate branches of government to resolve.”

So what does this mean for energy policy in New York?

Approximately 170 New York towns have enacted bans on hydraulic fracturing similar to those promulgated by the towns of Middlefield and Dryden.  After the Court’s opinion, the validity of those existing bans is no longer in question, nor is the power of other towns in the state to now issue similar bans.

That said, and as the Court itself acknowledged, there is nothing inherently anti-fracking about the Court’s opinion.  The Court’s recognition of home rule rights despite the OGSML supersession clause cuts both ways: although the instant case concerned a municipality’s use of home rule to prohibit fracking, the opinion also provides support for a municipality’s use of home rule to promote the practice.  Indeed, several towns throughout New York have taken formal positions in favor of fracking seeking to do just that.

Consequently, while the decision has been hailed as a huge win for environmental groups, the Court of Appeal’s opinion serves to retain the status quo that New Yorkers have grown accustomed to over the years: a de-facto state-wide ban on the energy practice, now complimented by legally valid municipal bans and positive declarations.