ELR Citation: 43 ELR 20099
No(s). 515227 (N.Y. App. Div. May 2, 2013)

A New York appellate court held that the state's Oil, Gas and Solution Mining Law (OGSML) does not preempt, either expressly or impliedly, a municipality's power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders. The case arose after a town amended its zoning ordinance due to growing local concern over the proposed use of hydraulic fracturing to recover natural gas from underground shale deposits. An oil company argued that the amendment was preempted by state law. But based upon the plain meaning of the OGSML's supersession clause, and the relevant legislative history and the purpose and policy of OGSML as a whole, the court held that OGSML does not expressly preempt the town's authority to enact a local zoning ordinance prohibiting oil, gas, and solution mining or drilling within its borders. The zoning ordinance at issue does not seek to regulate the details or procedure of the oil, gas, and solution mining industries. Rather, it simply establishes permissible and prohibited uses of land within the town for the purpose of regulating land generally. While the town's exercise of its right to regulate land use through zoning will inevitably have an incidental effect upon the oil, gas, and solution mining industries, zoning ordinances are not the type of regulatory provision that the legislature intended to be preempted by the OGSML. Nor is it invalid under principles of implied preemption. The ban, therefore, was upheld.