The Draft SGEIS and Local Regulation of High-Volume Hydraulic Fracturing
By James A. Muscato II, Elizabeth M. Morss
As concern about the HVHF process has increased, significant questions have arisen about what rights local governments have to regulate or bar the activity. Currently, the state statute governing oil and gas drilling includes a provision declaring that it supersedes local laws and ordinances “relating to the regulation of oil, gas and solution mining industries” subject to certain limited exceptions. ECL § 23-0303(2). In a 1987 decision, the New York Court of Appeals interpreted a similar provision of New York’s Mined Land Reclamation Law (MLRL) and concluded that it did not prohibit municipalities from exercising authority under their zoning laws to restrict or ban mining. Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126 (1987). In reaching its decision, the court concluded that allowing the MLRL provision to preempt the town’s zoning ordinance would drastically curtail the town’s power to adopt zoning regulations as provided in New York Town Law § 261 and other provisions. The Legislature subsequently amended the MLRL supersession provision to expressly authorize local zoning ordinances or laws that determine permissible uses in zoning districts; however, no similar change has been made to the drilling supersession provision. Nevertheless, the 1987 court of appeals decision arguably provides support for the conclusion that municipalities have the authority to ban drilling even in the absence of specific language in the supersession provision authorizing the adoption of zoning laws that limit drilling activities. However, the drilling law does not allow municipalities or counties to enact laws regulating drilling practices. Thus, while a town arguably could perhaps ban drilling generally as a permitted use under its zoning laws, it probably could not ban the specific practice of HVHF without running afoul of the supersession provision.
On the issue of local regulation, the SGEIS cites ECL § 23-0303(2) for the proposition that the oil, gas and solution mining law supersedes all local laws relating to the regulation of oil and gas development except for local jurisdiction over local roads or the right to collect real property taxes. The SGEIS does not address the distinction drawn by the Frew Run decision between local government’s regulatory and zoning authority. To address local government concerns, the revised draft SGEIS requires DEC to notify local governments of all applications for HVHF in the locality. More important, it requires the applicant to identify whether the proposed location of the well pad conflicts with local land use laws or regulations, plans or policies. Where conflicts are identified, DEC will require additional information from the applicant to enable the Department to determine whether significant adverse environmental impacts will result from the project that have not been addressed and whether additional mitigation or other actions should be taken to address those impacts.
The provisions of the revised draft SGEIS, when viewed together with existing statutory and case law, raise significant questions about what authority local governments have to limit HVHF within their boundaries. The draft SGEIS requires DEC to evaluate and attempt to mitigate conflicts with local zoning laws and plans; however, it does not compel DEC to defer to local laws even where the law would ban either the specific practice of HVHF or natural gas drilling generally. Absent additional action by the legislature, questions about local authority over gas drilling activities will likely be resolved by the courts.
