Skip to Main Content
Services Talent Knowledge
Site Search
Menu

Blog Post

August 29, 2013

NY’s Highest Court to Consider Whether Local Municipalities Can Ban Oil/Gas Development

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?  On August 29, 2013, the New York Court of Appeals decided to consider that question when it granted leave to appeal 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.  Indeed, the Third Department seems to have misapprehended the fundamental purpose of the Oil, Gas and Solution Mining Law (OGSML), the implications of which can be easily derived from the State’s long-standing regulation of the oil and gas industry under the OGSML and the distinct differences between surface mining and natural gas drilling. The Court’s conclusions that the local zoning bans have only an “incidental” effect on regulation of the industry, and that the OGSML and the State’s long-standing policy to promote the development of natural gas can “harmoniously coexist” with municipal-wide drilling bans, also signals some fundamental misunderstandings about oil and gas exploration and development. It is therefore appropriate and encouraging that the Court of Appeals has decided to step in and hear the Dryden and Middlefield cases.

Subscribe

Click here to sign up for alerts, blog posts, and firm news.

Subscribe

Sign up to receive our latest news

Practice Areas

Featured Industries

New & Emerging Industry Practice Areas

Other

Featured Media

Alerts

Use of Third-Party Delivery Services by OptumRx Retail Pharmacies

Alerts

Sweeping Anti-Sexual Harassment Bill Signed Into Law

Alerts

Forum Selection Clauses in IP Licensing: New Impact on IP

This site uses cookies to give you the best experience possible on our site and in some cases direct advertisements to you based upon your use of our site.

By clicking [I agree], you are agreeing to our use of cookies. For information on what cookies we use and how to manage our use of cookies, please visit our Privacy Statement.

I AgreeOpt-Out