The New York Court of Appeals rules on local ban on fracking

The New York Court of Appeals recently denied an energy company’s motion for rehearing in Matter of Wallach v. Dryden. Matter of Wallach was a consolidated appeal in which the court heard challenges to local fracking bans enacted in the Towns of Dryden and Middlefield. The parties challenging the bans argued that the local laws were preempted by state law.

The court held that the Oil, Gas and Solution Mining Law (OGSML) did not preempt local bans on hydraulic fracturing. The court reasoned that the towns had authority to enact the zoning laws banning fracking under the doctrine of home rule. In the court’s view, the OGSML only regulated oil and gas operations. Although the local laws would impact hydraulic fracturing, the court concluded that the ordinances were focused primarily on zoning and, thus, not preempted.

In its motion, the energy company relied on several cases in Colorado holding that state law preempted similar local fracking bans. A court in West Virginia has also found that state law precludes a city from prohibiting hydraulic fracturing. The energy company’s position was that the precedential value of Matter of Wallach is limited. The parties challenging the ban in Middlefield did not file a motion for rehearing.

Read the court’s decision in Matter of Wallach.

This post was written by Barclay Nicholson ( or 713 651 3662) and Johnjerica Hodge ( or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.