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.

West

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.

Slottje

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

Shale gas holds timeless impact on smalltown USA

Values that define the shale gas controversy are embodied in the physical aspects of rural landscapes of Pennsylvania and upstate New York – something I was reminded of in a visit to Cooperstown last week. Cooperstown is the seat of Otsego County, one of many upstate New York communities whose character is derived from a legacy of preservation. It’s a place of natural beauty, history, and gentrification featuring attractions such as Otsego Lake, headwaters of the Susquehanna River watershed; the National Baseball Hall of Fame; the Farmers' Museum; the Fenimore Art Museum; Glimmerglass Opera; and the New York State Historical Association. Otsego 2000 is a preservation agency founded in 1981 to protect the area’s natural and cultural assets. Executive Director Ellen Pope explained that the agency strives to keep the natural landscape more or less the way William Cooper (and his famous son James Fenimore Cooper) saw it 225 years ago. That vision doesn't include shale gas development and its related build out of well pads, pipelines, compressor stations, and accompanying truck traffic.

The rush to exploit the Marcellus Shale in Pennsylvania, by comparison, reflects an altogether different comfort level with resource extraction, shaped by a much different history. The Drake oil fields in northwestern Pennsylvania gave birth to the modern petroleum industry in the 19th Century; the anthracite coal mines in northeastern Pa. fueled the industrial revolution; quarry operations, both family owned and commercial, still provide product ranging from blue stone for upscale building projects to gravel for highways and infrastructure. Marcellus shale gas wells coming on line since 2007 are fueling electricity generation, petrochemical industries, and heating homes and businesses. The hard, dangerous, and messy story of mineral extraction is told in the scars that still mark the Pennsylvania countryside: acid mine drainage, inextinguishable fires like the one in Centralia, Pa.; ecological disasters and fatalities, and abandoned gas wells and drilling operations gone wrong that have contributed to methane seeps and explosions.

Mineral reserves seen as an economic windfall in Susquehanna County, Pennsylvania are considered a liability to land preservationists in Otsego County, New York. The shale reservoirs underlying both states– the Marcellus and the Utica -- are much closer to the surface in the Cooperstown area, and therefore less viable as primary targets for exploitation in the near future. But development of petroleum plays tends to lead to the discovery of new horizons and pay zones in adjoining areas. Shale gas plays that start in the center and work out can suddenly accelerate with an expansion in markets and a related jump in the value of the resource. So it is that Otsego County, an area drawing the casual interest of prospectors and speculators, remains on the battlefront of the shale gas war, with the Town of Middlefield playing a central role. A fracking ban in 2011 by the Middlefield Town Board drew a lawsuit by Jennifer Huntington and Cooperstown Holstein Corp. claiming the ban violates her rights to reap economic benefits of a lease to develop mineral rights on her 400 acres. The state Supreme Court upheld the ban in February. The industry is appealing the case, along with a similar state Supreme Court decision upholding a ban in Dryden in the Finger Lakes area. The landmark Middlefield/Dryden case will determine the extent that towns can determine their own destiny regarding shale gas development – a concept know as home rule. (As of now, the state and industry decide where the wells go.)

I met Pope in the courtyard of the Brewery Ommegang, where I gave a talk (hosted by Otsego 2000) about the unfolding policy developments that will influence the shale gas play. Much of my talk and the subsequent discussions were focused on the immediacy of the policy debate in the context of a highly anticipated release of New York state’s permitting guidelines after four years of deliberations and drafts. The backdrop for the evening – a countryside much the same as the Coopers saw it -- was a reminder of how the policy formulation playing out in courts and government halls will have timeless ramifications.