Gas Transmission Facilities: The Limits on Home Rule

By Podolny, Konstantin | Albany Law Review, Winter 2013 | Go to article overview

Gas Transmission Facilities: The Limits on Home Rule


Podolny, Konstantin, Albany Law Review


I. INTRODUCTION

High volume hydraulic fracturing (HVHF) is currently at the forefront of many New Yorkers' minds. The battle over the practice is proceeding on multiple fronts. In 1992, in accordance with the New York State Environmental Quality Review Act (SEQRA), the Department of Environmental Conservation (DEC) completed a Final Generic Environmental Impact Statement (FGEIS) for oil and gas wells, and determined that oil and gas wells do not have a significant adverse impact on the environment. (1) In 2009, the DEC issued a draft supplement to the FGEIS to consider environmental impacts relating to HVHF, as it was determined that HVHF and HVHF-related technologies were outside the scope of the FGEIS. (2)

In 2011, in response to an executive order by then-Governor Patterson, the DEC issued a Draft Supplemental Generic Environmental Impact Statement (DSGEIS) and proposed HVHF regulations, as well as amendments to the Environmental Conservation Law (ECL) for HVHF. (3) More than eighty thousand comments were received. (4) Currently, no timetable is set for the completion of the SEQRA review. (5) At the same time, numerous local governments have taken it upon themselves to ban HVHF within their borders. (6) The best known of these are the towns of Dryden and Middlefield. (7) These towns, along with many others, passed local zoning ordinances with broad prohibitions against many kinds of gas extraction activities, including HVHF. (8) However, most of these ordinances also prohibit activities secondary to actual gas extraction, including the construction of gas gathering lines and compressor facilities. (9)

Both the Dryden and Middlefield ordinances were challenged in court. (10) Landowners and gas developers challenged the legality of the ordinances, arguing that they were preempted by state law to the extent that they prohibited natural gas extraction. (11) The challenges failed at the supreme court level, with two judges deciding that the ECL only preempted municipalities from regulating the manner of gas exploration. (12) However, the courts held that the municipalities retained their broader power to regulate land use within their borders. (13) Basically, according to the supreme court judges, localities are forbidden from prescribing how gas is extracted, yet are free to prohibit gas extraction in toto. (14)

Numerous articles and commentaries have been written on both the logic and legal validity of these decisions. (15) Nevertheless, both decisions were affirmed by the appellate division. (16) Last August, the Court of Appeals agreed to hear the two cases. (17) No matter how the Court of Appeals rules, one thing is certain. Both the Dryden and Middlefield zoning laws are excessively broad, in that in their zeal to ban all things "fracking," both towns undertook to ban gas gathering lines and compressor stations from within their borders, along with wells and other gas-extraction activities. Under Article VII of the New York Public Service Law (PSL), both laws will be ineffective in preventing the construction of gas gathering lines and compressor stations. (18)

As explained in more detail below, gas transmission is at least as vital to increased natural gas use as increased local production. Even if HVHF is never permitted in New York, the state nevertheless has expressed a clear preference for increased natural gas use, whether it be natural gas extracted from conventional wells locally or using HVHF elsewhere. (19) In order for natural gas to reach consumers, it will need to be gathered and transported, which will require the construction of new transmission lines. (20) Article VII of the PSL gives the New York Public Service Commission (PSC) explicit authority to site gas transmission lines. (21) Part of that authority allows the PSC to refuse to apply local laws, such as those passed and (at least for the moment) still operative in Dryden, Middlefield, and dozens of other localities in New York. …

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