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June 3, 2014

Court of Appeals Hears Argument In Dryden and Middlefield Home Rule Cases

Did the Third Department, Appellate Division get Dryden and Middlefield wrong when it determined that municipal bans on natural gas development were a valid exercise of home rule? Today, the New York Court of Appeals will finally consider that question when it hears oral argument in both the Dryden and Middlefield cases.

On May 2, 2013, the Third Department, Appellate Division upheld lower court decisions in Norse Energy Corp. USA v. Town of Dryden and Cooperstown Holstein Corp. v. Town of Middlefield and unanimously held that a New York State law that expressly preempts local laws regulating how natural gas is developed neither expressly nor impliedly preempts a local zoning ordinance banning natural gas development. This holding, however, was replete in errors both as to why bans on natural gas development are expressly preempted under the Environmental Conservation Law as well as why they are preempted under implied preemption principles.

Simply put, the language of the preemption provision in the Oil, Gas and Solution Mining Law, coupled with its legislative history, establish that the Town’s arguments are misplaced. Moreover, the long-standing regulation of the oil and gas industry in New York at the state level and the explicitly stated policy objectives of the State to foster development confirm this result. Regardless of how you couch them or try to justify their legal authority, local ordinances that dictate whether and where drilling can occur are preempted in New York. (See our prior analyses detailing the lower courts’ error at http://hblaw.com/alerts/New-York-Appellate-Court-Upholds-Drilling-Bans-05-06-2013; http://hblaw.com/alerts/Did-the-Dryden-and-Middlefield-Courts-Get-It-Wrong-03-01-2012).

It is therefore appropriate and encouraging that the Court of Appeals decided to step in and will hear argument in the Dryden and Middlefield cases today. Oral argument is being live streamed on the Court’s website at http://www.nycourts.gov/ctapps/ and is scheduled to begin at 2pm.

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