Friday, September 6, 2013

Home Rule adversaries welcome date with high court Ruling on towns’ role in fracking battle will be ‘definitive’

Jurisdictional rights of local governments – an issue known as Home Rule -- will have monumental influence on where and if shale gas wells will be drilled in New York. The outcome of that story now hinges on the final act of a conflict that began in 2011 after the towns of Dryden and Middlefield passed laws that prohibited gas drilling and the controversial practice of hydraulic fracturing, deemed incompatible with land use plans.

The decision last week by New York’s high court to hear a case challenging local bans on fracking is a clear and understandable victory for the industry.  It is also something of a plot twist after bans in both Middlefield and Dryden were unanimously upheld in separate trial courts, and then again in the state’s appellate division. Tom West, who represents industry, knew a chance to breathe new life into his case challenging the town bans in the state’s high court was, in his words, “a long shot.” In 2012, the Court of Appeals heard just 64 cases out of nearly 1,000 requests for permission to appeal, or 6.4 percent. But because of the importance of the case, he filed an appeal anyway. The court announced on August 29th that it would hear the case.

With this in mind, you might expect that those who see Home Rule as a tool to discourage fracking in New York would be disappointed, maybe even crushed, by the possibility that clear-cut victories in lower courts could now be overturned in the Court of Appeals. But you would be wrong, at least if your source of information is Helen Slottje. Slottje is a principal attorney who represents the municipalities. It’s a role that positions her as an adversary to West in a case that brings a new level of visibility to both of their veteran careers. The Court of Appeals’ decision to hear the case gives the industry another chance. But, Slottje points out, it also gives Home Rule advocates a chance to remove any ambiguity that may have remained with lower court rulings. Without a definitive ruling from the high court, the door would remain open for other challenges and legal tacks in other districts.

“Lawyers might be interested in this dragging on. But it gets expensive and it’s a long process,” Slottje said. “There’s no quicker or easier way than having the course go to the Court of Appeals.”

On this point, West and Slottje have no differences.  “That’s a rare moment of agreement between us,” West said. “This will be definitive. However the Court of Appeals rules, that’s it. ”

Slottje and a colleague, attorney Deborah Goldberg of Earthjustice, have publically debated the case with West on various radio shows and at law clinics over the last year. I have participated in more than one of these events as a facilitator, and I’m now in the fortunate position of being invited to participate as a moderator in an upcoming clinic at the Albany Law School that will feature various legal points of reference on the future of drilling in New York State. The morning program promises a look at legal factors that will influence shale gas development, ranging from health impacts to property rights, with the afternoon session featuring the ground breaking Home Rule case as it advances to an even bigger stage. (I will moderate a panel in the morning program, and Capitol Pressroom host Susan Arbetter will moderate a debate between Goldberg and West in the afternoon session.)

The question at the core of the Home Rule case -- Norse Energy Corporation vs Town of Dryden et al. -- is whether the state’s Oil Gas and Solutions Mining law supersedes local laws when it comes to “regulation” of oil and gas operations. Lower courts have ruled in favor of the towns’ argument – based on precedent in similar cases involving jurisdiction over sand and gravel mines -- that banning something is different than regulating it. In other words, a local government can have a say of where and if gas wells are sited based on local land use plans, but not how they operate.

More than an abstract academic discussion, the outcome will influence the local landscapes for future generations. More than 150 municipalities have passed a ban or moratorium on gas drilling or fracking, according to FracTracker. It’s an area where the issues of fracking – with all its national and global ramifications – is brought tangibly down to the town board level. Whenever people – for or against fracking -- can see such a direct return on their civic engagement, it produces the kind of stories – stories with impact -- that journalistic sensibilities relish.

Both Slottje and West are cautious about reading much about the odds of winning or losing into the court’s decision to hear the case. There is no pattern in former rulings that suggests the Court of Appeals’ willingness to hear a given case predisposes it to overturning the decision of lower courts, with the record showing it upholds decisions with the approximate frequency that it overturns them.

“I think you can only read into this that it’s important for the court to clarify this,” West said.

The matter will be decided by the seven Court of Appeals judges, appointed by the governor to 14-year terms. (See their bios here.) The ruling is expected to come in the middle of next year, but the work has already begun. The schedule is yet to be announced, but if the case follows normal course of events, the petitioners, Norse Energy and Cooperstown Holstein Corp. (represented by West) have 10 days from the Aug. 29 announcement to file a preliminary statement of appeal, and 60 days after that to file briefs. Briefs from the towns of Dryden and Middlefield (represented by Slottje and Goldberg) are due 45 days after the industry’s briefs are filed. That means all the paperwork would have to be filed by the end of the year. Oral arguments would typically come five months later, or in May. Decisions are typically issued 40 days after oral arguments, which would be July.

The case could drag out longer, but that is unlikely, attorneys noted. The Court of Appeals, unlike other branches of government, has a reputation for sticking to schedules. There are other legal issues yet to be tested in courts, including the state’s (still undecided) administrative approach to regulate, permit, or ban shale gas wells while balancing public health and environmental concerns. By this time next year, however, the home rule case will be settled, even though fracking will undoubtedly remain a contentious political issue, with pending legislative and gubernatorial elections and an open door for legislative intervention


  1. The following comment is not a comment on Home Rule--I apologize for not sticking strictly to the topic at hand, but this comment does involve the issue of what places are likely to be protected from fracking.

    Yesterday I read the following article, which discusses the possibility of a ban on horizontal drilling in the George Washington National Forest--an area that contains the headwaters for D.C's water supply:

    What really struck me about the above article is that when fracking threatens Washington D.C.'s water supply, multiple agencies--in particular the EPA--suddenly support a ban on horizontal drilling. This is the same EPA that has pulled back from investigations of water contamination in PA, WY, and TX. This really looks like a double standard, and is strongly reminiscent of the special protection offered NYC's watershed in NY.

  2. Mary, you are correct. In PA everyone of our 60+ counties is due to come under the uniform Act 13 which makes fracking open everywhere, it is fracker - written & fracker - paid for law.
    BUT there are 2 PA counties which won't come under Act 13: Bucks & Montgomery, these are the wealthiest & most influential counties in PA.
    Gee, guess it's just a coincidence...

    1. Gloria, Do you know what legislative tool is used to excuse Bucks & Montgomery from Act 13? More info is appreciated.

    2. Tom--The PA legislature passed a moratorium on drilling in the South Newark Basin. Gloria may have more info on this, but for now see:

  3. Here's my guess on a decision by the New York Court of Appeals judges based only on their bio's Tom linked to: 4 will side with O&G and 3 with town folks. Again, that is based on nothing but a quick read and a gut feeling. Not even worth a grain of precipitated briny blowback water.

    1. If the court should decide against Home Rule, then the towns that have passed their own bans will suddenly have a very big reason to call very loudly for a statewide ban. And, not surprisingly, some of the towns that have bans are in fairly prosperous areas--including areas dependent on industries (e.g. tourism) that will be "negatively impacted" (i.e. ruined) by shale gas development. Without Home Rule, I'm not sure what the mechanism would be for offering some sort of convincing protection to any wealthier areas not covered by the protections offered to the NYC and Syracuse watersheds. And that is a political problem for Gov. Cuomo.

      On the other hand, if Home Rule wins, that will offer some protection to those areas that have local bans, although those areas could still see drilling-related problems (e.g. air and water pollution from one town can certainly affect a neighboring town). But overall, I think that allowing local bans will make it politically easier to drill those areas that do not have local bans.

      To make matters still more "interesting," if the court's decision isn't reached until July, 2014, that means that the local ban question will not be settled until very shortly before the fall election season. (Personal note: I'm not sure I can take another ten months of suspense, but that's another story.....)

  4. You guys living in New York really know you stuff. With the research done and the knowledge gained from dealing with the Marcellus, you should go national and global. As you know it's not really production curves that control shale exploitation, but politics and commerce. This same issue is playing out and played out throughout the US. Southern Illinois has gotten closed-backdoored into shale for the New Albany. Property owners in that area need help, since the former Senator of Illinois now president of the US is pro fracking as are many of the environmental groups. Texas, Pennsylvania, Wyoming and Arkansas are slowly becoming aware of the impacts. California is next. Oh, and federal lands too.

    How to get paid for your knowledge is a tough question. The parties interested in your experience aren't the ones necessarily swimming in cash.

    1. "The parties interested in your experience aren't the ones necessarily swimming in cash."

      No kidding. :-)

      Seriously, the anti-fracking movement in NY is almost entirely a volunteer effort. If everyone involved had expected to be paid, it never would have happened. Many, many people have given up a tremendous amount of time that they had planned to use for other activities--like spending time with family and friends, volunteering for other community projects, or getting a decent amount of sleep. All of that human time and talent could have been put to other uses if fracking had not come along. This is one of the many costs of the shale gas industry.

    2. Mary,
      For what it's worth...

      Shale gas exploiters spend a lot of money on messaging and counter messaging. Here's a stab at the incidental tasks and activities (or soft costs) that may or may not be included in the unit price of oil and gas.

      A-1) Finance. Information real or imaginary is what turns a rather mundane commodity like shale gas into a $100 million Central Park East apartment.

      1) Interests groups for policy - This could be any of the mushrooming three/four letter acronyms promoting shale development.

      2) Lawyers - hired: The typical white shoe law firm doesn't do corporate work pro bono and the business model of law firms (besides having paying clients) is information and word usage.

      3) Public Relations and Image Consultants: this was covered in a previous post.

      4) Advertisers: this could be local, state or national media plays. I'm sure the pro natural gas radio spots on my NPR station don't come cheap.

      5) Academia: either doing hard subsurface scientific research or soft economics and policy. This is spread out pretty evenly throughout US universities.

      6) News via enthusiastic journalism.

      7) Politicians: local, state and federal.

      8) Environmental NGOs: depends on the NGO and its board of directors.

      9) Landowners (real or imaginary): Nothing makes a nicer image than a Carhartt wearing farmer gushing about shale gas and oil (see advertisers).

      10) Environmental consultants (high end thinkers): expert witnessing, calculating risk and whatnot.

      11) Environmental consultants (project and field level): compliance work - if required.

      12) Labor Unions: infrastructure construction and drilling may or may not be union - maybe in the Northeast and Midwest. It's not your grandfathers labor/capitalists alliances anymore (see above).

      13) Think tanks: I'm not really sure what these guys do and why they get so much money for doing it. So I'll put them at the bottom of the heap. They do seem to push the US into doing stuff that is high risk and low reward for most of us.

      I guess my point is that information has value.

    3. I agree--absolutely. Information does have value. And thanks to the hard work of many concerned citizens (not just in NY, but all over this country and in other countries), we now have a lot of accurate information that can be used to counter the gas industry's hype. The information is out there on the web, accessible to anyone with internet access. The question is how to make the general public aware of that information. Since we don't have money for a massive national ad campaign, I think the way to make people aware is at the local level, one town at a time, via volunteer efforts. That's what has happened in NY. If people care enough to volunteer, there's some hope. If they don't, the gas industry wins. No one is going to swoop in and save us: we have to save ourselves.

    4. I guess my point was that one can either look at the time and money spent information gathering as an irretrievable sunk cost or as an investment to benefit from on future efforts. In other words, one can either cherish the hurt or the reward. Canonization takes between 100 and 1,000 years post mortem. In other other words, there's money in environmental policy expertise and one of these days the tides will turn.

    5. I don't think most activists would view the time and money spent as an irretrievable sunk cost--I think most would see it as an investment in the future.

      Many of the people involved in the fight against fracking were never involved in any type of activism before, and are not hoping for any sort of financial gain (beyond saving their homes) or any type of canonization, post mortem or otherwise. :-) Rather, they got involved because they saw a real and immediate threat to their families and communities and to their hopes and dreams for the future.

    6. Thanks Mary. I'm actually enjoying this discussion thread. This issue is raised a lot on Dot Earth and several other blogs. Even though the main driver for environmental protection is human health and wellbeing, for some reason it's ignored. Even property rights, the foundation of United States citizenship, is ignored - as you well know.

      Anyway, the issue with information relay is not so much availability, it's whether the information gets digested. Or "you can lead a horse to water, but you can't make it drink."

      Oil and gas has done a pretty good job with divide and conquer. Shale gas plays have been left to local residents to either succome or fight. State and federal environmental agents seem pretty passive. So it becomes catch as catch can for property owners. The entire reason for State and Federal environmental regulations was to avoid this. Which is probably why oil and gas lobbied hydraulic fracking away from SDWA, CAA, CWA and maybe Superfund. Superfund could potentially put leaseholders, property owners along with producers liable for compensation in the event of impacts to lands and groundwater. And this is where local problems become state and eventually national problems. Groundwater remediation ain't cheap - whether it's actually cleaned up or deemed unusable and an alternative supply is provided.

    7. Right--the regulatory approach is not working very well, except, as noted at the beginning of this conversation, for certain places and certain people. This is really not a situation that is likely to contribute to the long-term health of our democracy or our economy.

  5. Not only will a decision by the Court of Appeals decides the issue at the highest level, but also apply the decision to the entire state. Currently the Appellate decision applies only to the 3rd Department.