Friday, November 2, 2012

“Friends of court” hope to sway NY Home Rule case

Early next year, lawyers representing two municipalities, a drilling company, and a landowner will argue a case in the New York’s Appellate Division that will broadly influence shale gas development in the Empire State. The case is a collective appeal of two separate lower court decisions that upheld the authority of local governments to ban drilling over the state’s authority to permit it: Norse Energy v. the Town of Dryden and Cooperstown Holstein (a corporate landowner) v. the Town of Middlefield.

On the surface, it seems a simple matter. Do local zoning laws apply to state-regulated drilling? But as soon as you begin to break it down, it gets complicated. The question embodies critical Constitutional principles: The extent government can control private land use, and people’s rights to seek government protection from harm inflicted by another party. The issues are sticky because the answers have long been defined by ideological boundaries. Can parties who oppose the federal government’s involvement in regulating affairs of the state fairly support the state’s exclusive control of drilling in self-governing local jurisdictions, for example? How are individual rights best preserved while serving the greater public good?

In New York, as in most states, state officials permit petroleum wells through a generic process based on industry’s needs, without regard to the character, planning, and land-use preferences of local communities. Because, drilling -- a minor part of the New York’s large and diverse economy – has never progressed much beyond remote and comparatively limited areas, the state’s generic style of permitting has never been challenged...

Until now. The scale and logistics of shale gas development are entirely different from conventional drilling, and they are raising correspondingly monumental jurisdictional questions in towns sitting over some of the world’s most promising carbon reserves. If President Barack Obama and his challenger, Mitt Romney, are as keen on tapping domestic reserves as they appeared to be in their recent debate, your home town, and many others throughout the country that sit over black shale, may become a global petroleum producer, for better or worse.

The prospect of widespread and intensive unconventional drilling operations by outside companies has some local town boards fearing an assault on the characters of their communities, while the sums of money on the line and the promise of jobs and cheap energy have industry supporters fearing local bans that could interfere with full-scale development. And that’s why the Dryden and Middlefield cases have come to represent something much more than zoning issues affecting particular communities. (Details on the cases and links to decisions and appeals can be FOUND HERE).

To help the court weigh the case and the far reaching ramifications of its eventual decision, attorneys on both sides are sheduled to file briefs next week on behalf of at least 64 interested parties – (known in legal terms as amici curiae or “friends of the court”). The parties include more than 50 towns and villages within New York state, and a host of organizations representing planners, mayors, businesses, landowners, farmers, and industry. In general, the business groups and industry are against recognizing Home Rule authority over shale gas development. That’s because effective shale gas development, according to industry supporters, needs regulatory predictability and uniformity to control large contiguous land tracts in a way that encourages the most cost effective and complete placement and build-out of drilling rigs and infrastructure. This can run counter to planning goals of towns and villages making land use decisions based on local standards, political preferences, and community character.

Industry attorney Tom West said he expects “considerable amicus support for both sides” which should send “the right message to the Appellate Division that these cases are very important to the future of oil and gas development in New York State.” Attorney Deborah Goldberg, representing towns seeking to preserve the application of Home Rule to shale gas development, agreed that the number and range of parties listed in amici briefs “shows the significance the decision will have on a wide range of interests.” According to John Henry, an attorney who filed briefs on behalf of parties that support Home Rule, his clients are fighting for something that transcends the fracking debate: “They are not taking sides for or against fracking,” he said. “All they want to do is make sure that Home Rule prevails.”

It’s hard to discount partisan interest over the outcome of shale gas development from all parties filing briefs. The American Petroleum Institute, the Independent Oil & Gas Association, and parties advocating exclusive control of shale gas development through the state have interests and positions diametrically opposed to those of the City of Ithaca and other municipalities with large and active citizenry backing the anti-fracking movement.

West anticipates the case – before an intermediate appellate court -- will be heard in February, with a decision 6 to 8 weeks after the oral argument. But there is the possibility that the case may continue on after that. The loser can seek an appeal before New York’s highest court, the New York Court of Appeals.

Parties in support of lower court decision upholding Home Rule drilling bans:

Town of Ulysses
City of Ithaca
City of Oneonta
Town of Alfred
Town of Ancram
Town of Camillus
Town of Carlisle
Town of Caroline
Town of Catham
Town of Claverack
Town of Copake,
Town of Danby
Town of Dewitt
Town of Elbridge
Town of Enfield
Town of Geneva
Town of Gorham
Town of Highland
Town of Ithaca
Town of Jerusalem
Town of Kirkland
Town of Lansing
Town of Livingston
Town of Lumberland,
Town of Marcellus
Town of Meredith
Town of Middlesex
Town of Middletown
Town of Milo
Town of New Hartford
Town of Mendon
Town of Otisco
Town of Otsego
Town of Owasco
Town of Potsdam
Town of Rush
Town of Sennett
Town of Skaneateles
Town of Springfield
Town of Summit
Town of Tusten
Town of Wales
Town of Westmoreland
Town of Woodstock
Village of Cayuga Heights,
Village of Dundee
Village of Freeville
Village of Honeoye Falls
Village of Prospect
Village of Saugerties,
Village of Sharon Springs
Village of Trumansburg
The Associated Towns of New York State
The New York Conference of Mayors
The New York Planning Federation

Parties seeking to overturn lower court decision on Home Rule drilling ban

American Petroleum Institute
The Chamber of Commerce of the United States
The Independent Oil and Gas Association of New York
Business Council of New York State
Clean Growth Now
National Association of Royalty Owners
The Joint Landowners Coalition of New York
The New York Farm Bureau


  1. The New York Farm Bureau? That is really interesting. If New York is anything like Illinois the farm bureau probably represents more of less commodity traders, several extremely wealthy farmland holding families and large ag-businesses. Then say small and medium size farmers who actually, you know, farm.

    One thing that has New Yorkers in a bind is the coupling of environmental protection and natural resources development under the NYSDEC. DEC does not seem to act as an advocate for the people, but as one for oil, gas and mining interest. That is a complete conflict of interest. Even Illinois isn't that bad. Illinois EPA is separate from the geologic survey and natural resources development.

    Great work as usual Tom.

    1. Thanks Michael. I don't know much about the Illinois Farm Bureau, but the New York Farm Bureau represents a pretty diverse and independent group which at times has been an advisary to the energy companies trying to exploit landowners, although by and large its membership is for developing the resource as long as its on their terms. Thanks for sharing the distinction with the Illinois EPA. In New York, the DEC's Mineral Resources Division (under Materials Management) is the permitting arm and you are correct about it's obligation to industry interests. It has traditionally worked apart from the policing and forest management arms of the other branches.

  2. Good summary of current situation. There are a number of issues here that are inherently very particular to the oil and gas industry, in particular the interpretation of the state's specific preemption language regarding oil and gas (in Environmental Conservation Law Article 23) in relation to home rule authority. However, there are also larger and more general principles and legal issues involved and people should also pay attention to them. In my opinion, many important policy issues (obviously not all) are related as much to the scale of development of energy supply systems as they are to the primary energy source involved. Not very long ago, the greatest controversies over local decision making about energy development in NYS had to do with wind power. As this recent article from the Watertown Daily Times make clear, in some parts of the state these issues haven't gone away. See for example and note in particular the accurate sentence, "Article X of the 2011 Power NY Act expedites the approval process of electric-generating facilities of 25 megawatts or higher and gives a state siting board the authority to override local zoning laws." And as we make the critically important decisions on how quickly we can/must replace fossil fuels with renewables, the debates about home rule will become more rather than less widespread and sharper. So will the implicit tensions between rural (net energy producer) and urban (net energy consumer) communities.

    1. "...there are also larger and more general principles and legal issues involved and people should also pay attention to them..." Great point and thanks for illustrating with your reference to the Watertown Daily Times article and placing renewables in the context of the discussion.

  3. Personally, I think that fracking for shale gas is accompanied by so many safety issues that no amount of regulation will make it reasonably safe. But, on the larger issue of Home Rule as it applies not only to fracking but also to renewable energy sources and all other industries, I think it's important to note that when communities are forced, by law, to accept unsafe, dirty industries, that can work to delay or prevent innovations that would have made the industries more acceptable to more communities. After all, if an industry is barred from operating in many or most communities, then it will have a powerful incentive to clean up its act. Remove that incentive, and the industry is likely to remain an unsafe and dirty (but profitable) mess for as long as it can get away with that business model. So I think that in the long run, negating Home Rule is probably a bad thing for everyone, industries included.

  4. Hi Tom,
    What is the source of your list of the amicus parties? Is it complete, and is there an updated set available? Thanks in advance.