The Court of Appeals today upheld the authority of local governments to zone out hydraulic fracturing for natural gas, known as fracking. The zoning laws of two towns were before the Court, Middlefield and Dryden. Both towns had taken the same tack of banning fracking as a hazardous and undesirable land use under their zoning laws. I had the honor of arguing the case for Middlefield in defense of the Article 78 proceeding and declaratory judgment action brought by a landowner in Supreme Court. When the Middlefield and Dryden decisions were handed down three days apart in 2012 with the same ruling, I was confident they would be upheld throughout the appeals process.

What is remarkable is the consistency of the decisions in these two challenges in the Supreme Court, Appellate Division and Court of Appeals. The argument of the natural gas companies and landowners with leases was that the Oil, Gas and Solution Mining Law ("OGSML") gave DEC exclusive jurisdiction over the regualation of not only the operation, but also the location, of natural gas wells. But Court of Appeals prcedent did not and does not support that argument.

In the line of decisions running from Frew Run Gravel Prods. v. Town of Carroll, 71 NY2d 126 (1987) through Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668 (1996), the Court of Appeals has consistently held that state preemption clauses that expressly preempt regulation of the operation of an industry do not by implication preempt municipal authority to regulate the location of an industry. Local zoning authority can be preempted by the state only by explicit landguage and clear legislative intent. Both were lacking in the OGSML.

Although this is a great victory for the anti-fracking campaign, the future of fracking in New York still rests with the Governor. A year ago, the administration appeared to have leaked a proposal allowing fracking in municipalities that wanted it and prohibiting it in municipalities that did not. In response to the initial decisions in Middlefield and Dryden in 2012, many of the towns along the Pennsylvania border adopted local laws expressly permitting fracking. This Court of Appeals decision opens the way for the Governor to carry out the leaked proposal.

The campaign against fracking must continue to be waged on two frontiers--at the local level to put in place local zoning law provisions banning fracking and treatment, transport and use of fracking wastes and at the state level to get a statewide ban from the Governor. In the meantime, this decision is a great and lasting victory for the land use powers of local governments, which will no doubt play an important role in many future battles.