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December 17, 2013

Town of Dryden Files Brief in Home Rule Case Before Court of Appeals

On Monday, December 16, 2013, the Town of Dryden filed its brief with the New York State Court of Appeals in the case of Norse Energy Corp. v. Dryden urging the Court to uphold the Town’s ban on drilling. 

Dryden’s brief is as one would expect.  Much of the Town’s brief concerns a recitation of Court of Appeals’ precedent under the Mined Land Reclamation Law and arguments as to why this precedent, which concerns the extractive mining industry as opposed to the oil and gas industry and concerns differing statutory language, regulatory schemes and legislative histories, controls whether local municipalities in New York are preempted from determining whether and where drilling can occur.   The Town then goes on to argue, in what can only be characterized as mystifying, that local regulation of land use, including a ban on all development, is consistent with the State’s declared policy to foster development, prevent waste, maximize recovery and protect correlative rights.   

We have previously detailed the error in the Town’s analysis as accepted by the lower courts (http://hblaw.com/alerts/New-York-Appellate-Court-Upholds-Drilling-Bans-05-06-2013http://hblaw.com/alerts/Did-the-Dryden-and-Middlefield-Courts-Get-It-Wrong-03-01-2012).  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.

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