State Supreme Court Justice Ferris D. Lebous recently overturned a local ordinance adopted by the Binghamton City Council in 2011 to ban activities associated with gas drilling and exploration for a period of two years. Justice Lebous’ decision is the first in New York State to overrule a local ordinance pertaining to the process of hydraulic fracturing, or fracking.
Local landowners argued the law was a zoning ordinance that should have been referred to the local Planning Board, and that the law did not meet certain prerequisites for enactment of a moratorium. The petitioners also argued the ordinance was superseded by State law.
The City of Binghamton claimed the ordinance was not a moratorium nor a zoning ordinance, but rather an exercise of its police powers that did not have to meet the requirements of a moratorium or face Planning Board review.
The court granted summary judgment for the landowners and ruled, in part, that the two-year sunset period made the law a moratorium. While a municipality may enact a stop-gap measure under its police powers to protect the health, safety and welfare of its citizens, there are certain elements the municipality must meet for a moratorium to be properly enacted. The court ruled that the City failed to provide a justification which demonstrated a “dire need” or “crisis condition,” or that they were taking steps to review and rectify the issue, all necessary elements of a moratorium. As the New York State Department of Environmental Conservation has yet to publish new regulations that are required before fracking may occur in the State, no permits are currently being granted, and therefore no dire need or crisis condition could be demonstrated. The City had not engaged in any investigation or study to determine if there was a way to alleviate potential harm from fracking activities.
The ruling comes as Gov. Andrew Cuomo’s administration, in its fourth year of review of fracking, has decided to restart the regulatory rule-making process and perform additional review of fracking’s health impacts. A state-wide moratorium has been in place since 2010. During this review process, 39 municipalities have implemented bans, and 103 have issued moratoria.
Justice Lebous noted agreement with the decisions in the Dryden and Middlefield cases upholding a local government’s regulation of the use of lands within their jurisdiction pertaining to gas exploration, storage and extraction. Justice Lebous also agreed with those courts that state law does not supersede these local ordinances, and called the decisions “well-founded.” However, Justice Lebous focused his decision on the facts of the process by which the Binghamton ordinance was adopted. This fact-based ruling narrows the impact this decision may have on local fracking ordinances going forward.
While this decision is noteworthy, as it marks the first invalidation of a local law banning or delaying fracking within the State, the narrow, fact-based analysis is by no means a final decision on fracking in New York.
Ms. Barnashuk is the newest member of Phillips Lytle’s Energy Practice Team.