A great deal of attention has been devoted recently to the potential to exploit hard-to-extract natural gas resources from a formation known as the Marcellus Shale. With the use of a technology known as hydraulic fracturing, it has become physically possible to reach this resource. Exploiting it would likely have a major impact on the economy and provide a large domestic supply of energy. However, there are serious concerns regarding the environmental impacts of hydraulic fracturing and its impact on local government operations and land use patterns.

The New York State Department of Environmental Conservation is taking the lead on setting conditions for hydraulic fracturing that will govern industry operations. However, many local governments are beginning to consider to what extent they can assert jurisdiction as well.

In New York, oil and gas extraction is governed by Article 23 of the Environmental Conservation Law, a law which contains a provision that addresses the interplay between local and state regulatory jurisdiction – ECL 23-0303(2). Up until recently, there was little focus on it, but with the potential for developing the Marcellus Shale, it has become the center of attention in the debate over local jurisdiction.

This article explores the likely interpretation of this provision and its impact.

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