By: Andrew Meyer
20th February 2012
Local elections in New York last fall seemed to feature only two types of candidates: ardent supporters of a local ban on fracking and equally ardent opponents. State courts are now poised to decide whether localities in New York even have the power to ban fracking in the first place, or if local ordinances banning fracking are preempted by state law. Natural gas leaseholders and industry have sued at least two municipalities, challenging recently enacted zoning ordinances that remove natural gas extraction as a permissible land use-in effect banning fracking within municipal borders. The plaintiffs argue that the state Oil, Gas, and Solution Mining Law (“OGSM”) preempts such local zoning ordinances, as the OGSM expressly supersedes “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries.” Thus, the question presented is whether a generally applicable zoning ordinance that bans natural gas extraction “relat[es] to the regulation” of natural gas. This Field Report discusses the factual and legal context in which this question arises, and argues that the OGSM does not preempt a general zoning ban on natural gas extraction. The Field Report concludes that this is the normatively desirable outcome, considering the importance of the zoning authority-an essential home rule power-in preserving local control over distinctly local matters of concern.
Although hydraulic fracturing, known colloquially as “fracking,” is now used to produce nearly thirty percent of domestic natural gas, it is effectively exempt from federal regulation. Thus, whether and how fracking is employed is largely left to state legislatures and regulatory agencies. In New York, fracking has been subject to a moratorium since late 2010, which continues as the New York Department of Environmental Conservation (“DEC”) reviews comments on its recently issued revised Supplemental Generic Environmental Impact Statement (“SGEIS”) and proposed regulations for “high-volume hydraulic fracturing.”
The anticipated end to the moratorium has catalyzed action on both sides of the fracking debate. Industry continues to secure mineral rights in the Marcellus Shale region, which has pitted local landowners eager to capitalize against those concerned about environmental and health impacts. Meanwhile, towns across the state have amended or entirely replaced their comprehensive zoning laws to “zone out” fracking as a permissible land use, with varying degrees of specificity. While ordinances in only two municipalities-the towns of Middlefield and Dryden-have been challenged in court, the outcome of these initial cases may very well determine the courts’ approach to others.
II. Preemption of Zoning Laws
This discussion begins with a brief overview of the sources of municipal zoning authority and then turns to the doctrine of preemption. It considers the OGSM’s express preemption provision in light of parallel provisions in other statutes, particularly the Mining Land Reclamation Law (“MLRL”). It concludes that a categorical zoning ban on natural gas activities is not preempted by the OGSM.
A. Municipal Home Rule: The Source and Nature of Municipal Zoning Authority
The Constitution of the State of New York establishes in the “Bill of Rights for Local Governments” that “[e]very local government shall have power to adopt local laws,” including laws relating to “government, protection, order, conduct, safety, health and well-being of persons or property therein,” “except to the extent that the legislature shall restrict the adoption of such a local law.” Implementing this express grant of authority to municipalities, the New York State Legislature enacted the Statute of Local Governments, granting every local government “the power to adopt, amend and repeal zoning regulations” and “to perform comprehensive or other planning work relating to its jurisdiction.”
With its roots in the New York Sate Constitution, the municipal zoning authority is “among the most important powers and duties granted by the legislature to a town government.” Indeed, New York State law directs the Court of Appeals to “liberally construe” the municipal zoning authority, permitting municipalities to zone out-that is, remove as a permissible land use from all districts-certain uses, provided such bans serve the local public welfare. In the context of zoning, the “public welfare” is broadly construed to include physical as well as intangible aesthetic considerations, such as a town’s “rural qualities.”
B. Preemption and Municipal Zoning Laws: The Oil and Gas Preemption Provision in Context
Although the municipal zoning authority is among the most essential home rule powers, it is nonetheless a delegated power that the New York State Legislature has authority to preempt. Focusing on the preemption provision of the OGSM, which states that “[t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,” some have argued that municipalities do not have the authority to enact zoning ordinances that ban fracking. While one court has interpreted the preemption provision of the OGSM, that case did not address the question presented here. Thus, in determining whether municipal zoning laws that ban or otherwise regulate the siting of natural gas facilities “relat[e] to the regulation” of natural gas, courts will almost certainly look to judicial treatment of the parallel preemption provision in the most analogous statute: the MLRL. The MLRL provides that it “shall supersede all other state and local laws relating to the extractive mining industry.”
Although its preemption provision is broad, the MLRL does not preempt municipal zoning ordinances that regulate the siting of extractive mining facilities. In Matter of Frew Run Gravel Products v. Town of Carroll, the Court of Appeals directly addressed whether the MLRL preempted a town’s zoning laws. The DEC had granted Frew Run a permit to conduct “sand and gravel” operations in the Town of Carroll. However, because the property was zoned exclusively for agricultural and residential development, the town notified Frew Run that its operation was prohibited. The court held that Carroll’s zoning ordinance related “not to the extractive mining industry but to an entirely different subject matter and purpose: i.e., regulating the location, construction and use of buildings, structures, and the use of land in the Town of Carroll.” The court noted that land use regulation “inevitably exerts an incidental control” over regulated businesses and reasoned that such “incidental control resulting from the municipality’s exercise of its right to regulate land use through zoning is not the type of regulatory enactment . . . within the prohibition of the statute.” That is, the MLRL’s purpose is not to control town zoning, but rather to provide uniform mining regulations. The court ruled that local regulations dealing with “the actual operation and process of mining” would be preempted, but not local zoning ordinances concerned with the appropriate use of local lands.
Subsequent cases have affirmed the court’s holding in Frew Run and applied the same reasoning in other contexts. Given how similar the MLRL’s language is to the OGSM, this reasoning will likely be applied to the OGSM. Thus, broadly drawn zoning ordinances that, for example, zone out all “heavy industrial activities” or “natural gas activities” should not be preempted. Middlefield has enacted a version of the former, while Dryden has enacted a version of the latter. Neither should be preempted by the OGSM. Even a more narrowly drawn statute that specifically zoned out fracking would likely survive a challenge, although there is a stronger argument that such a regulation relates to the regulation of gas because it distinguishes between permissible and impermissible techniques of gas extraction. To the extent practicable, municipalities should be as general as possible when zoning out fracking.
III. Zoning Power and Home Rule Policy
The normative considerations underlying home rule authority likewise favor a municipality’s power to decide whether natural gas extraction may occur in its territory. Courts have recognized that land use is one of the essential home rule powers because it addresses a distinctively local matter of concern. Even setting aside the well-documented possible environmental and human health impacts, fracking is undeniably a high-impact land use. It dramatically and often irreversibly alters the character of local landscapes, regardless of the stringency of state regulations. Forests are fragmented by roads and rights of way; land is clear-cut and covered over by cement well pads; the rural ambience is replaced by the drone of compressor stations, drilling and fracking equipment, and diesel truck engines; and rural sceneries are punctuated by metal towers rising among forest or farmland. These changes are not merely subjective intrusions: they can impact local economies and the character of local communities dependent on rural tourism and recreation, uses that are essentially incompatible with an industrialized landscape.
Challengers will likely cite the countervailing state interest in avoiding the “waste” caused by such bans-namely, that otherwise valuable gas will remain in the ground. However, the OGSM’s purpose does not appear to mandate extraction of all available oil and gas; rather, it intends to regulate the “manner” in which oil and gas is extracted where it happens to occur. The decision to abstain from such a land use, as certain municipalities have done, is a distinct matter. Indeed, the Court of Appeals has recognized, in the context of the MLRL, that “[a] municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole.” Moreover, industry urges an exceedingly narrow conception of “waste,” focusing only on the foregone exchange value of untapped gas deposits. The OGSM is a part of the Environmental Conservation Law, the purpose of which is “to conserve, improve and protect [the] natural resources and environment”-that is, to avoid wasting the living resources in our immediate biosphere, in addition to the inert gases trapped thousands of feet below.
Considering the home rule law, the MLRL parallel, and policy relating to the municipal zoning authority, courts should uphold municipal bans on natural gas extraction when they are enacted through generally applicable zoning laws. However, municipalities would be wise to avoid narrowly targeting fracking, since courts are more likely to find that such an ordinance, which makes distinctions between different sorts of processes covered by the OGSM, “relat[es] to the regulation” of natural gas.
.See, e.g., Sam Pollak, Fracking Stirs Large Turnouts in Local Elections, The Daily Star, Nov. 9, 2011, http://thedailystar.com/localnews/x627661685/Frackingstirslargeturnoutsin
.As a percent of total dry gas production in the “lower 48,” shale gas represented six percent in 2006, eight percent in 2007, twelve percent in 2008, sixteen percent in 2009, and twenty-four percent in 2010. In June 2011, it reached twenty-nine percent. Secretary of Energy Advisory Board, Shale Gas Production Subcommittee 90-Day Report 6 n.3 2011, available at http://www.shalegas.energy.gov/resources/081811_90_day_report_final.pdf.
.See, e.g., Safe Drinking Water Act, 42 U.S.C. § 300h(d)(1)(B) (2006); Clean Water Act, 33 U.S.C. § 1362(6)(B) (2006); Resource Conservation and Recovery Act, 42 U.S.C. § 6921(b)(2)(A) (2006); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601(14) (2006).
.Revised Draft SGEIS on the Oil, Gas and Solution Mining Regulatory Program (September 2011), N.Y. Department of Envtl. Conservation, http://www.dec.ny.gov/energy/
75370.html (last visited Feb. 13, 2012).
.See Peter Applebome, Drilling Debate in Cooperstown, N.Y., Is Personal, N.Y. Times, Oct. 29, 2011, http://www.nytimes.com/2011/10/30/nyregion/incooperstownsfightovergas
.For a map of municipalities that have passed zoning ordinances that, in effect, ban fracking, see Mapping the Movement, Food & Water Watch, http://www.foodandwaterwatch.org/water/fracking/frackingactioncenter/map/ (last visited Feb. 13, 2012).
.N.Y. Town Law § 272-a(1)(b) (McKinney 2011); see also DJL Rest. Corp. v. City of New York, 749 N.E.2d 186, 191 (N.Y. 2001) (“One of the most significant functions of a local government is to foster productive land use within its borders by enacting zoning ordinances.”).
.See Matter of Gernatt Asphalt Prods., Inc. v. Town of Sardinia, 664 N.E.2d 1226, 1235-36 (N.Y. 1996) (upholding a town’s determination that mining was not a permitted use of land within its borders).
.N.Y. Envtl. Conserv. Law § 23-2703(2) (McKinney 2011) (emphasis added). Note the subtle difference between these provisions. While the OGSM preempts only local laws, the MLRL preempts both local and state laws. Moreover, to the extent there is a difference, “relating to the extractive mining industry” is broader language than “relating to the regulation” of gas. Thus, if a court were to rule that the MLRL’s broader, more inclusive provision does not preempt, it should find that the OGSM’s narrower provision does not either.
.See, e.g., Matter of Hunt Bros. v. Glennon, 613 N.E.2d 549, 550 (N.Y. 1993) (upholding “local zoning ordinances that are addressed to subject matters other than extractive mining and that affect the extractive mining industry only in incidental ways”).
.See DJL Rest. Corp. v. City of New York, 749 N.E.2d 186, 191-92 (N.Y. 2001) (upholding zoning authority in relation to alcohol in the face of implied preemption by Alcoholic Beverage Control Law).
.See, e.g., Kamhi v. Town of Yorktown, 547 N.E.2d 346, 350 (N.Y. 1989) (“a town’s planning needs with respect to its neighborhood parks and playgrounds are ‘distinctively’ matters of local concern”); Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir. 1995) (“decisions on matters of local concern should ordinarily be made by those whom local residents select to represent them in municipal government”).
.See, e.g., Kirk Johnson, E.P.A. Links Tainted Water in Wyoming to Hydraulic Fracturing for Natural Gas, N.Y. Times, Dec. 8, 2011, http://www.nytimes.com/2011/12/09/us/epasays
hydraulicfracturinglikelymarredwyomingwater.html. See generally Riverkeeper, Fractured Communities: Case Studies of the Environmental Impacts of Industrial Gas Drilling 2010, available at http://www.riverkeeper.org/wpcontent/uploads/2010/09/
.See, e.g., Eliza Griswold, The Fracturing of Pennsylvania, N.Y. Times, Nov. 17, 2011, http://www.nytimes.com/2011/11/20/magazine/fracking-amwell-township.html; Katharine Q. Seelye, Gas Drillers Invade Hunters’ Pennsylvania Paradise, N.Y. Times, Nov. 11, 2011, http://www.nytimes.com/2011/11/12/us/pennsylvania-hunting-and-fracking-vie-for-state-lands.html.
.The OGSM legislative declaration of policy provides: “It is hereby declared to be in the public interest to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste . . . .” N.Y. Envtl. Conserv. Law § 23-0301 (McKinney 2011).