Zoning out Fracking: Zoning Authority under New York State's Oil, Gas and Solution Mining Law

Article excerpt

Introduction

 I. Fracking and Its Current Legal Landscape

    A. What Is Fracking, and Who Regulates the Process?

    B. Federal Law & Interstate Law

    C. New York State Law

       1. Fracking on Hold

       2. Environmental Conservation Law

       3. Oil, Gas and Solution Mining Law

       4. Preemption

       5. New York State Constitution and Home Rule Law

       6. Mined Land Reclamation Law

 II. Local or State Rule over Local Governance

    A. Preemption of Fracking Under the Oil, Gas, and
       Solution Mining Law

    B. Constitutional Analysis

 III. Increasing Public Welfare One Zoning Ordinance at a

    Time

    A. Preemption Analysis Should Not Apply

    B. Applying the Constitution

Conclusion

INTRODUCTION

Over the past several years, an increasing amount of public concern has focused on the ills of a method of natural gas drilling called hydraulic fracturing, or "Cracking." (1) Fracking has been linked to contamination of drinking water, earthquakes, rapid deterioration of public roads, and air pollution. (2) The safety of drinking water has been a particularly prevalent topic. Although only two Environmental Protection Agency (EPA) studies have linked Cracking to the contamination of water wells, (3) there have been several incidents in which safety precautions have failed to prevent the escape of natural gas into the water aquifer, (4) and several studies have shown a correlation between drilling activity and high methane levels in nearby water wells. (5)

On the other hand, states are always in need of jobs, and natural gas jobs are particularly attractive in a worsening economy. (6) Studies have shown that natural gas has not only been a boon to employment in the core drilling industry, but also to employment in ancillary industries. (7) At a time when the financial crisis has run a number of states' budgets to a financial precipice, (8) the natural gas industry provides a stable source of tax revenue. (9) Moreover, a large state supply of natural gas would decrease dependence on other energy sources, namely coal and nuclear power, which operate within unstable regulatory environments. (10)

Currently, New York faces both a host of financial issues and its own energy crunch. The upcoming closing of the Indian Point nuclear power plant, which supplies up to 25 % of New York City and Westchester County's energy capacity, and the simultaneous impact of proposed state and environmental regulations may cause a 50% reduction in New York State's generating capacity by 2016. (11) As a result, state officials are pushing the State to look for more stable sources of energy. (12)

Due to stricter federal regulation of dirty fossil fuels, such as coal and oil, (13) and advancements in drilling technology, natural gas, which is the cleanest burning fossil fuel, has become a much more attractive resource. (14) The skyrocketing demand for locally extracted and developed natural gas that can be supplied with minimal transportation costs is clearly an incentive behind New York's Department of Environmental Conservation's (DEC's) push to permit instate well drilling and development. On a national scale, consumption is rapidly increasing. (15) The current oversupply of natural gas on the market has pushed natural gas prices down. (16) In anticipation of the expected shift by U.S. utilities from coal to natural gas, (17) however, producers are still desperately seeking to open up more untapped domestic natural gas resources. (18) An increasing percentage of domestic natural gas resources are coming from shale gas. (19)

New York sits atop one of the largest shale formations in the country, the Marcellus Shale. Shale gas found in a shale formation is thermogenic gas. (20) Thermogenic gas, the type of natural gas found in the Marcellus Shale, is formed over millions of years by the application of heat and pressure to buried organic matter. (21) Wells drilled into the gas reservoir allow the highly compressed gas to expand through the wells. …