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By William A. Ruskin
Local bans on hydraulic fracturing continue to be fiercely debated as the use of hydraulic fracturing for oil and gas development of shale reserves increasingly gains in popularity. Grassroots opponents of hydraulic fracturing increasingly stress the non-environmental social impacts that have become associated with hydraulic fracturing in certain rural communities.
On May 2, 2013, two Appellate Division cases in New York came down that upheld the use of local zoning ordinances to ban fracking. Unless the New York Court of Appeals takes a different path, the law established in these cases – Norse Energy Corp. v. Town of Dryden, No. 515227, 2013 N.Y. Slip OP. 03145 (3d Dept. 5/2/13) [enhanced opinion available to lexis.com subscribers] and Cooperstown Holstein Corp. v. Town of Middlefield, No. 515498, 2013 Slip Op. 03148 ((3d Dept. 5/2/13) [enhanced version], will allow towns to use zoning to ban fracking in their communities.
An excellent discussion of the background of these New York cases can be found in WestLaw Journal: Environmental (Volume 33, Issue 26/July 9, 2013) titled "Will fracking become the rule of local zoning control in New York state?", authored by Eileen Millett, an environmental lawyer at Epstein Becker & Green and a former a former Visiting Professor of Law, who taught courses at Syracuse University School of Law in environmental and regulatory law, and is an expert on environmental/energy regulatory compliance.
According to Millett, the law may now be settled on this issue in New York, but the same issue is creating angst for stakeholders in Pennsylvania. Pennsylvania Act 13, enacted in 2012, contained a section restricting the ability of municipalities from controlling the location of gas drilling within their boundaries.
Pennsylvanians now await a decision from the Supreme Court, in the wake of a Commonwealth Court decision, which found that that Act 13 cannot restrict zoning. The state had argued in that case that zoning provisions in Act 13 do not pre-empt local governments from enacting zoning ordinances so long as they did not place any restrictions on the location of oil and gas drilling operations in conflict with Act 13. Robinson Township et al. v. Commonwealth of Pennsylvania, No. 284 MD 2012 [enhanced version].
Citing the need for statewide uniformity to ensure the most efficient development of oil and gas resources, and consistent environmental protections for all residents, the Pennsylvania legislature also declared that all local ordinances -- including local zoning rules -- must allow for reasonable development of oil and gas resources consistent with the new legislation. Stay tuned.
Once the moratorium on hydraulic fracturing is lifted in New York (and it most likely will be lifted sooner or later), there may be a patchwork of communities throughout the State which have banned fracking. Nevertheless, there will still be many communities in New York where the activity will be welcomed.
For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.
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