New York Court of Appeals to Consider Local Bans on Hydraulic Fracturing

The New York Court of Appeals has granted Norse Energy Corporation USA leave to appeal the lower court decision in Norse v. Township of Dryden, that New York municipalities have the authority to ban oil and gas development in the state. Since there was no right to appeal, in granting this leave to appeal, the court sends a strong signal that the legal issues will get a fresh look by New York's highest court. The court also gave leave for the Washington Legal Foundation, the American Petroleum Institute, the New York Farm Bureau, and the Associated General Contractors of New York State LLC to file amicus briefs.

Norse Energy seeks to stop the wave of local moratoriums and bans on hydraulic fracturing in more than 150 New York municipalities by asserting that the Oil Gas and Solution Mining Law (OGSML) preempts local rules, an argument rejected by the lower court judges. The four-judge panel from the Supreme Court, Appellate Division, Third Judicial Department held that the OGSML’s preemption provision “insure[s] uniform statewide standards and procedures with respect to the technical operation activities of the oil, gas and mining industries in an effort to increase efficiency while minimizing waste,” not to “usurp the authority traditionally delegated traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions.”