By Meredith James and Dianne Saxe.
Helen Slottje, a lawyer in Ithaca, New York, was recently awarded the Goldman Environmental Prize for her work “helping towns across New York defend themselves from oil and gas companies by passing local bans on fracking” (the US equivalent of anti-fracking bylaws). Her legal research concluded that individual townships could use zoning laws, through “home rule”, to ban fracking within their borders, to protect local air and water quality. More than 170 towns and cities in New York have passed local ordinances prohibiting fracking based on her innovative legal framework. The ordinances have been upheld by two levels of court, and will soon be reconsidered by the New York Court of Appeals.
Readers ask, “Can we do this in Canada?” Canadian municipalities do not have powers as broad as the “home rule” rights of US municipalities. It would be more difficult to craft a Canadian bylaw that would withstand legal challenge. But if the US ordinances stand up, Canadian municipalities may decide it is worthwhile to follow suit with their own anti-fracking bylaws. The basic issues and tensions are essentially the same in both countries. At a minimum, anti-fracking bylaws may discourage drillers who have other options.
New York Law
The legal framework crafted by Ms. Slottje first came before the courts in two cases, including Norse Energy Corp. USA v. Town of Dryden. Last year, the Appellate Division of the Supreme Court of New York, Third Department, upheld the ordinance, [enhanced version available to lexis.com subscribers]. They ruled that the Town’s “home rule”authority, specifically its authority to regulate the use of land through zoning laws, was not preempted by the New York state regulation of fracking, even though the stateOil, Gas, and Solution Mining Law contains an express preemption clause. This is similar to the “occupied field” test often used in Canada, but the US court was much more deferential to municipal power than we are used to here.
The court held that because Dryden’s zoning law “does not seek to regulate the details or procedure of the oil, gas and solution mining industries” but “simply establishes permissible and prohibited uses of land within the Town for the purpose of regulating land generally,” Dryden’s ordinance was “not the type of regulatory provision that the Legislature intended to be preempted by the OGSML.” The court ruled that the legislative intent of the OGSML was merely to eliminate any local regulation of “technical operational activities” in the oil and gas industries, not to usurp more general zoning and land use decisions.
A detailed history of the case is posted at Catskill Citizens for Green Energy.
Dianne Saxe, Ontario Environmental Lawyer
Reprinted with permission from the Environmental Law and Litigation Blog.
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