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| West |
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| Slottje |
“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
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.
ReplyDeleteYesterday 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:
http://www.bloomberg.com/news/2013-09-06/fracking-limits-for-virginia-forest-spark-debate-on-water.html#disqus_thread
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.
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.
ReplyDeleteBUT 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...
Gloria, Do you know what legislative tool is used to excuse Bucks & Montgomery from Act 13? More info is appreciated.
DeleteTom--The PA legislature passed a moratorium on drilling in the South Newark Basin. Gloria may have more info on this, but for now see:
Deletehttp://articles.philly.com/2012-07-11/news/32619938_1_south-newark-basin-drilling-for-natural-gas-charles-mcilhinney
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.
ReplyDeleteOn 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.....)
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.
ReplyDelete"The parties interested in your experience aren't the ones necessarily swimming in cash."
ReplyDeleteNo 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.
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.
ReplyDeleteI 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.
ReplyDeleteMany 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.
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.
ReplyDelete