- Posted by George A. Rodenhausen
- Category: Blog
- Published: July 12, 2012
The two court decisions upholding the right of municipalities to zone out high presssure, high volume hydrofracturing for natural gas, known as "fracking", have been appealed to the Appellate Division for the Third Department. The two appeals will most likely be heard together this winter and a decision issued by spring.
The Appellate Division decision will be pivotal. If the Appellate Division affirms the lower courts, an appeal to the Court of Appeals is not automatic. The industry and property owners would have to request leave of the Court to hear the appeal. Whether the Court of Appeals would take the case is difficult to assess. The lower court decisions relied heavily on Court of Appeals precedent in parallel mining cases. The Court could decide to let the lower court interpretation stand or it could create a new rule for natural gas drilling. If the Court hears the cases, we would probably not have a final decision until early 2014.
In the meantime, the rulings of the Middlefield and Dryden cases stand. New York State has not preempted a municipality's land use authority to decide where, if at all, fracking will be allowed. The state has also not preempted local jurisdiction over local roads or the right of local governments to tax fracking facilities under the Real Property Tax Law. Section 23-0303 of the Environmental Conservation Law does preempt local regulation of fracking operations, such as technical standards and operating procedures. In the words of these decisions, the state may determine "how" fracking will occur, but local governments may determine "where" it will occur.