New York’s highest court dealt a blow to the hydrofracking industry on June 30 when it upheld, in a consolidated opinion in Matter of Wallach v. Town of Dryden and Cooperstown Holstein Corp. v. Town of Middlefield, the authority of municipalities to use their zoning powers to ban hydrofracking. The Court of Appeals held that provisions on the towns’ zoning ordinances that prohibited hydrofracking anywhere within their borders were not preempted by the “supersession clause” of the state’s Oil, Gas and Solution Mining Law (OGSML). That clause, said the Court, prevents municipalities from regulating the “how” of hydrofracking but does not bar them from limiting “where” it can take place.
Hydrofracking – or, more properly, hydraulic fracturing — uses pressurized fluids injected into wells to fracture underground rock formations and liberate natural gas trapped within the rock. The Marcellus Shale formation, which extends over a number of states including New York, contains significant amounts of gas, and therefore has attracted intense interest from energy companies. At the same time, concerns have been raised about hydrofracking’s environmental impacts, especially those related to chemicals in the pressurized fluids. Those types of concerns led the Town of Dryden, a rural community in Tompkins County, and the Town of Middlefield, which includes part of the Village of Cooperstown in Otsego County, to amend their zoning plans to ban hydrofracking. (Both towns argued that their zoning plans already banned hydrofracking because they did not list it as a permitted use.) The appellants, companies with interests in leases that would have permitted exploring and developing natural gas through hydrofracking, challenged the ordinances, arguing that they were preempted by the OGSML’s supersession clause. They failed in the trial court and the intermediate appellate court, and then presented their arguments to the Court of Appeals.