Slip op. at 7. To avoid the seemingly plain meaning of the broad preemption language, the Third Department interpreted the phrase “regulation of the oil, gas and solution mining industries” to mean only the “detail or procedure” of those industries. Id. at 8. By contrast, the court ruled that the town’s zoning ordinance “simply establishes permissible and prohibited uses of land within the Town for the purpose of regulating land generally.” Id. (citation omitted).
While purporting to analyze the legislative history of the OGSML, and decisional precedent in New York, the Third Department ignored such authority as the regulations promulgated pursuant to the OGSML and the environmental impact statements prepared to address the environmental impacts of such activities to inform its analysis of the scope of how the oil, gas and solution mining industry is “regulated.” Similarly, in its determination that an ordinance banning all such activities “will inevitably have an incidental effect upon the oil, gas and solution mining industries,” the court stretched its authority to interpret and analyze well past defensible limits.
Norse is entitled to petition for leave to appeal from the Court of Appeals. However, the court does not routinely grant such leave, particularly in cases where the Appellate Division affirms without dissent or there is a split in authority among departments of the Appellate Division. Entities seeking to develop oil and gas resources in New York should seriously consider filing amicus briefs in support of leave to appeal and on the merits of Norse’s arguments.