In separate decisions issued in late February 2012, two upstate judges have independently ruled that local municipalities in New York are allowed to prohibit natural gas drilling within their boundaries. The courts based their decisions on the legislative history of the state’s Oil, Gas and Solution Mining Law (OGSML) and on prior mining law decisions that clearly establish the authority of townships, villages and counties in New York State to dictate land uses under the zoning authority granted them by the state. While the rulings in favor of either or both of the involved towns (Dryden in Tomkins County and Middlefield in Otsego County) may be appealed, these two solidly and concisely reasoned opinions greatly bolster the efforts of towns willing to exercise Home Rule authority to protect themselves from the dangerous and unhealthy practices of fracking. For more detail on these two decisions please read Municipalities and Natural Gas Extraction…What the Frack? by Ronald Steinvurzel and Jessica Buno in the New York Law Journal.
Please see a map of the current high volume horizontal hydraulic fracturing drilling bans and moratoria in NY State.
What is Home Rule?
Certain states explicitly grant their cities, counties, and municipalities the ability to create laws and ordinances for themselves that further their operations in areas where the State and Federal Government do not already legislate. This ability to pass local laws to meet specific needs is known as Home Rule.
What role does Home Rule play in protecting communities from the destructive practice of hydrofracking?
More and more communities are looking to home rule initiatives to protect them from the highly destructive practice of hydrofracking. Throughout the Catskills and in neighboring states, municipalities are exploring the use of bans and ordinances that protect aquifers or regulate zoning, hazardous waste, and road use in order to shape their own future.
Regulations and Home Rule
Vigorous federal and state regulation of the hazardous features of gas drilling may offer the most uniform and far-reaching protection for air, water and quality of life in communities. However, in the absence of sufficient regulation, communities are turning to local home rule initiatives as another avenue of protection and community control.
The Realm of Home Rule
While statutes in New York and Pennsylvania provide for statewide regulation of the oil, gas, and solution mining industries, the home rule authority granted by the New York State Constitution and related New York statutes allows local communities to determine for themselves whether, where, and how certain types of activities take place. Although the NY Environmental Conservation Law states that municipalities cannot adopt local laws or ordinances “relating to the regulation” of the oil, gas and solution mining (hydrofracking) industries, solid legal authority developed in analogous cases involving mining affirms that municipalities may continue to regulate land use and other matters involving public health, safety and welfare that fall outside of the State’s regulatory program.
Cases in Pennsylvania are just beginning to test the limits of home rule land use and related authority specifically related to the control of gas drilling at the local level. Based on these decisions and earlier New York cases, an attorney for the New York Association of Towns has coauthored an article positing that courts in New York will likely also uphold the traditional home rule authority of local governments so as to permit “municipalities to regulate land use or other matters involving public health, safety and welfare, which fall outside of the State’s regulatory program.” (Kenneally, M., Mathes, T., Natural Gas Production and Municipal Home Rule In New York, New York Zoning Law and Practice Report, Vol. 10, No. 4, Jan/Feb 2010, pp. 5-6).
The Association of Towns and others (e.g., Onondaga County; see below) have called upon the NY State Legislature to clarify the realms in which communities can legitimately assert authority over activities within their borders. Catskill Mountainkeeper advocates passage in NY of the bipartisan bill proposed to “Clarify Applicability of Local Protections Over Natural Gas Development” (A.3245 Lifton/S.3472 Oppenheimer & Bonacic). This bill specifies that local governments retain the right to enact and enforce zoning laws that protect against harms associated with inappropriately sited drilling and hydrofracking.
In order to help communities who are interested in pursuing local home rule, Catskill Mountainkeeper offers here a list of the published online legal approaches utilized by municipalities, including aquifer protection laws and various local ordinances and resolutions. These include multiple examples of pleas issuing from local municipalities and counties for more effective protection from the harmful effects of hydrofracking via state and federal legislation and from regulatory agencies through their permitting and oversight activities.
Resources for Municipalities
Two nonprofit organizations have emerged as leading advocates and consultants for communities who want to move forward with local municipal ordinances:
The Community Environmental Defense Council generally works within traditional zoning and planning approaches. According to their website, the CEDC provides “free high quality legal advocacy and assistance to communities and citizen groups to help these groups in obtaining the benefit of environmental protection laws.”
The Community Environmental Legal Defense Fund helps municipalities write ordinances based on innovative “Home Rule Charters.” The approach taken by CELDF is based on rights guaranteed or implied by the US Constitution and could be particularly helpful in states without Home Rule laws.
Because the passage of a moratorium can protect a community until it enacts more permanent ordinances, we also include below published examples of ordinances that provide for a moratorium on gas drilling activities.
An informative summary of the use of zoning and planning laws to serve a municipality’s own view of its future by Julie Huntsman of Fly Creek, NY, is available online.
Approaches to Home Rule Published Online*
Examples of Local Ordinances
Aquifer Protection Laws
(addressing features such as Industrial Use, Mining, Extraction, Density, Road Use, and limited features of Site Review)
City of Buffalo
Hazardous Waste Laws (and Provisions in Laws)
Examples of Local Bans
Examples of Countywide Ordinances
Examples of Calls for New Legislation and Enhanced Regulation
Resolution requesting NYS to allow the banning of Hydrofracking by municipalities and requesting NYS to pursue further assessment before allowing Hydrofracking
Onondaga Co. HFRAC State Memorializing Resolution
Resolution requesting NYS to ban fracking and pass A.10490/S.7592
[i.e., a moratorium until 120 days following release of EPA study] and that all standards be applied statewide, not just within NYC and Syracuse watersheds
Tompkins Co. HRFAC State Memorializing Resolution
Resolution requesting ban of drilling in NYS pending further investigation and new SDGEIS
Requesting NYS moratorium on fracking until further review, ban on fracking in Catskill and Delaware watersheds, and new SDGEIS
Resolution requesting removal of safe drinking water act exemptions for Hydrofracking, stricter federal regulations on drinking water, NYS to prohibit drilling in NYC watershed
Resolution requesting enactment of federal FRAC act and closure of Halliburton loophole, and disclosure of chemicals used in fracking
Resolution memorializing the US Senate and House of Representatives to create/amend laws to adequately protect environment and public from risks associated with Hydrofracking
General Statement of Opposition
Examples of Enacting a Moratorium (prior to enacting other ordinances)
*Our thanks to the Citizens Campaign for the Environment for their early efforts to collect and publish local laws, ordinances, and resolutions online.
Based on extensive study and scientific evidence, Catskill Mountainkeeper has called for a ban on fracking. We are also working within the existing regulatory process in New York to raise critical issues, widen the discussion of the impacts of drilling, and expand the options available to protect the public.