MEMORANDUM To: From: Re: Date: Councilman Michael OBrien Bradford D.

Burns, Assistant Corporation Counsel Comparison of ECL 23-2703 and ECL 23-0303 September 12, 2011

The purpose of this memo is to provide you with a review of the Frew Run Gravel Case, Sections 23-2703 and 23-0303 of the Environmental Conservation Law, and their applicability to City of Albany Ordinance 43.62.11. In Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126 (1987), the Court of Appeals found that a town zoning ordinance was not a law relating to the extractive mining industry, where the statute, ECL 23-2703(2), expressly stated that a municipality may enact or enforce local zoning without it being deemed an attempt to regulate the extractive mining industry. The current version of ECL 23-2703(2) states as follows: For the purposes stated herein, this title shall supersede all other state and local laws relating to the extractive mining industry; provided, however, that nothing in this title shall be construed to prevent any local government from: a. enacting or enforcing local laws or ordinances of general applicability, except that such local laws or ordinances shall not regulate mining and/or reclamation activities regulated by state statute, regulation, or permit; or b. enacting or enforcing local zoning ordinances or laws which determine permissible uses in zoning districts. By comparison, ECL 23-0303(2), which applies to the regulation, development, production and utilization of natural resources of oil and gas, states as follows: The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.

ANALYSIS There is a clear difference between the two statutes at issue. First, ECL 23-2703 was created under that Section of the Environmental Conservation Law which regulates the extractive mining industry (solids such as rock, gravel, etc.). In the statute relating to the extractive mining industry, the Legislature specifically carved out exemptions to the preemption language provided in ECL 23-2703. One of the exemptions was that municipalities may still enforce and create zoning laws that could limit the activities of extractive mining within their borders. The Frew Run case involved a gravel mine. Conversely, ECL 23-0303 was created under that Section of the Environmental Conservation Law which regulates the extraction of gas, oil and solutions (non-solid materials). The Legislature did not carve out the same exemptions to the preemption language that it did in the regulations for extraction mining. The language in 23-0303 is clear on its face that the only local laws that are not superseded are laws involving jurisdiction of local roads or any rights under the real property tax law. If the intent of the Legislature was to provide local municipalities with the ability to create zoning laws, which impede upon the States right to regulate and control the permitting process of the oil and gas mining law, they would have expressly provided for the exemption as they did in 23-2703(2). Further, in analyzing the legality of Ordinance Number 43.62.11, an ordinance amending the Citys zoning regulations to prohibit the extraction or drilling for natural gas within the City of Albany, the applicable State law would be ECL 23-0303. As discussed above, given the plain meaning of ECL 23-0303, it would appear that the State Legislature did not intend that a local municipality have the ability to pass a zoning ordinance relating to gas mining. To that end, Frew Run appears to by inapplicable because its analysis rests on a statute which does not regulate the gas mining industry. CONCLUSION The plain meaning of ECL 23-0303 makes it clear that the Legislature did not intend to give municipalities the power to create zoning laws which might impede upon its ability to regulate the extraction of gas, oil and solutions. As a result, the passage of City of Albany Ordinance 43.62.11 may or may not be preempted under state law. It is recommended that a vote on this ordinance be tabled until such time as the New York State Department of Environmental Conservation has had the opportunity to create rules and regulations for the extraction of gas, oil and solutions. Passage before the release of the rules and regulations could result in the City of Albany having to litigate this issue.