This June, readers of The Daily Star were fortunate to be able to contrast an eighth-grade understanding of the law with the decisions of two Supreme Court judges and three appellate court judges. All five judges affirmed the right of home rule for local governments to zone drilling along with other heavy industry.
State law has long recognized the distinction between zoning of location and regulation of operation. For example, towns may zone-out manufacturing from residential neighborhoods but may not regulate the manufacturing operations. This distinction is the bedrock upon which several lawsuits were decided supporting local zoning of gravel mining back in the 1980s — long before the citation by Judge Cerio in Cooperstown Holstein Corporation v. Town of Middlefield.
Environmental Conservation Law § 23-0303(2) explicitly grants the Division of Mineral Resources power over regulation of oil, gas and solution mining with the exception of local regulation over local roads and real property taxes. Local power over zoning, granted under the state constitution, is unmentioned and therefore left intact. Mr. Downey did not present one word to indicate otherwise.
This is as it should be because local governments are closest to the people and are best able to represent their interests.
As a result of the appeal, should the Court of Appeals sustain the Supreme and appellate courts, home rule over drilling through zoning will be preserved throughout the whole state, not just the third department as it is now.
Nevertheless, drilling could come eventually to towns, cities or villages with local bans or moratoriums. They could zone in drilling if the industry proves through example that it can be done “safely and responsibly” with both individuals and communities benefiting. Don’t hold your breath.