Helen Slottje, a lawyer in Ithaca, New York, was recently
awarded the Goldman Environmental Prize for her work
"helping towns across New York defend themselves from oil and
gas companies by passing local bans on fracking" (the US
equivalent of anti-fracking bylaws). Her legal research
concluded that individual townships could use zoning
laws, through "home rule", to ban fracking
within their borders, to protect local air and water quality.
More than 170 towns and cities in New York have passed local ordinances prohibiting fracking
based on her innovative legal framework. The ordinances have
been upheld by two levels of court, and will soon be
reconsidered by the New York
Court of Appeals.
Readers ask, "Can we do this in Canada?" Canadian
municipalities do not have powers as broad as the "home
rule" rights of US municipalities. It would be more
difficult to craft a Canadian bylaw that would withstand legal
challenge. But if the US ordinances stand up, Canadian
municipalities may decide it is worthwhile to follow suit with
their own anti-fracking bylaws. The basic issues and tensions are
essentially the same in both countries. At a minimum, anti-fracking
bylaws may discourage drillers who have other options.
New York Law
The legal framework crafted by Ms. Slottje first came before the
courts in two cases, including Norse Energy Corp. USA v. Town of Dryden. Last
year, the Appellate Division of the Supreme Court of New York,
Third Department, upheld the ordinance. They ruled that the
Town's "home rule"authority, specifically
its authority to regulate the use of land through zoning
laws, was not preempted by the New York state regulation
of fracking, even though the stateOil, Gas, and Solution Mining Law
contains an express preemption clause. This is similar to the
"occupied field" test often used in Canada, but the
US court was much more deferential to municipal power than we are
used to here.
The court held that because Dryden's zoning law "does
not seek to regulate the details or procedure of the oil, gas and
solution mining industries" but "simply establishes
permissible and prohibited uses of land within the Town for the
purpose of regulating land generally," Dryden's
ordinance was "not the type of regulatory provision that
the Legislature intended to be preempted by the OGSML."
The court ruled that the legislative intent of the OGSML was
merely to eliminate any local regulation of "technical
operational activities" in the oil and gas industries, not to
usurp more general zoning and land use decisions.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
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