Global fracking debate: Coming soon to town hall near you Upstate NY localities face fallout from Home Rule decision

Late last month, New York’s high court issued a ruling that put the debate over the merits and risks of shale gas development in the hands of local governments.  The much-anticipated ruling – a monumental victory for grassroots political action -- settled a long-standing question regarding the state’s jurisdictional control over the matter. Yet it raised many other questions about how local governments will respond.

There are towns for drilling and towns against drilling. But much of the fight over where and to what extent shale gas development – including high volume hydraulic fracturing -- will be a part of the New York landscape will play out in towns with no stated policy. Do communities that don’t want fracking need to actively pass a ban? Can communities that want fracking amend zoning laws to encourage it? What happens if they do neither?

These questions are predicated on a pending decision by Governor Andrew Cuomo on whether to allow fracking anywhere in the state. While the outcome of that remains anybody’s guess, we know from Cuomo’s past remarks that he favors a plan to begin issuing shale gas permits in towns with no local bans. These happen to be along the border with Pennsylvania, which also sit over the most viable parts of the Marcellus Shale. This dynamic becomes especially relevant to towns in this area – and there are many of them -- with no comprehensive plan and nothing on the books specific to fracking.

One of these places is Vestal, where dozens of residents against fracking attended a town board meeting this week to urge elected officials to pass a local ban.

The reaction by Town Supervisor John Schaffer, as reported by BinghamtonHomepage.com, was not especially concrete. "Our town code says you can't do it here to begin with, and I've told these people [anti-fracking activists] that over and over and over," Schaffer said. He then added: "We’re aware of the recent Court of Appeals decision regarding home rule. While the decision permits the town to enact legislation that would ban fracking, it does not require us to ban it. According to the town board, we will carefully monitor this issue and will act when and if there’s an incident for us to do so."

(In her blog The Marcellus Effect, Sue Heavenrich covers a similar controversty unfolding in Candor, NY.)

Some legal experts say that towns could – depending on wording and interpretation of local law -- grant variances to gas companies to site wells in areas otherwise zoned against industrial use, which is just what supporters of gas development are hoping for and what opponents dread. Attorney Helen Slottje represented Dryden and Middlefield in their Home Rule victory. In a recent appearance on Capitol Press Room, Slottje pointed out that while the Court of Appeals ruling would make it more difficult for operators to drill in zoned areas, it would still be possible, depending on how a given town reacted to the ruling.

“There are in most zoning codes various exceptions for different uses that could be construed by a court to be like gas drilling sufficient to allow gas drilling to proceed,” she said. “The safest thing for a town to do is to pass a zoning amendment or stand alone law that makes it clear that gas drilling is not permitted in their town.”

Industry lawyer Tom West also raised that possibility. He told host Susan Arbetter his clients would be “implementing a strategy to protect our investments,” but because the nature of the fight had been so tactical – like a chess game where each side was anticipating the other’s moves -- he was “not at liberty to discuss that strategy.”

All this sounds suggestive and inconclusive because it is, at least until the matter is fully deliberated and acted upon at a town board level.

Some activists are already beginning to push the matter. Sue Rapp, a member of Vestal Residents for Safe Energy (VeRSE), characterized Vestal Supervisor Schaffer’s comment that the town would take a wait-and-see approach as “garbled messages not on point ... When examined, his remarks convey nothing of substance on the issue of zoning regs/variances and gas drilling.”

The ambiguity can be maddening or inviting, depending on your stake in the debate, and it has provoked some thoughtful comments from readers on my recent post about fallout from the Court of Appeals decision.

In response to a comment by Mary Sweeney, who pondered whether existing zoning laws would preclude drilling with no stated bans, fracking critic and policy analyst Stan Scobie elaborated on the undisclosed plan that West mentioned on Arbetter’s show. According to Scobie, West is organizing a campaign with certain towns over Marcellus shale zones to create policy – zoning overlays – that would maximize development of the play by creating the legal architecture to override zoning laws. Scobie writes:

Governor Cuomo and the DEC some time ago raised a difficult issue, namely,  fracking would perhaps be OK in those towns who "wish" to be fracked,  but  how would we know which ones they are? To address this the pro-drillers have crafted a "zoning overlay" strategy.

This plan would have each town modify their Comprehensive Plan, if they have one, to be somewhat fracking friendly, and then develop and legislate zoning overlays. These would, if passed, clearly identify the towns and areas in towns where fracking was OK. There would be no "frack me" resolutions passed quietly and quickly at Town Board meetings with zero attendance as seemed to be the case a couple of years ago. 

Scobie’s full response can be viewed here in the comments section.

This week, I asked West in an email whether zoning laws already on the books – those that prohibit industrial operations in residential or other areas -- effectively serve as “bans” to oil and gas. And of if so, can drilling supporters work around them? West responded:

Whether oil and gas activities are considered an industrial use, will be a municipality by municipality determination...  Much of the clarification will come over time.

In other words, much of where drilling is allowed will come down to interpretation of local zoning laws, and that interpretation will be made on a town by town basis by local leaders and their lawyers.

In short, the fight over drilling in New York is far from over. It continues on the state level, where activists like Walter Hang are leading a campaign to pressure Cuomo to withdraw the controversial policy review that is essential for it to go forward. And, pending that outcome, it continues on a local level, where towns will have to either craft policy clarifying how and if their zoning laws apply to gas drilling, or face the prospect of court challenges and the consequences when push comes to shove with money, leases, and passions on the line.

New York’s high court upholds Home Rule bans ... Decision complicates natural gas prospects

It’s settled. There will be no fracking in New York communities such as Dryden and Middlefield – serene and scenic places that have passed rules that find shale gas development incompatible with local land use ordinances.

The three-year battle over jurisdictional control over the industry ended today when the New York Court of Appeals upheld lower court decisions that cedes control over where and if shale gas development can happen from state to local governments. That’s a landmark victory for Home Rule advocates, including residents of more than 170 upstate communities that have passed moratoriums or bans on the controversial process.

But the future of fracking in the Empire state remains more unsettled than ever. All of the communities with fracking bans happen to be outside areas with the strongest prospects for shale gas development. In Southern Tier counties bordering the booming gas fields in northern Pennsylvania, many local governments either support fracking, or have no enforceable policy to prevent it. For every place like Dryden, there is a place like Sanford, a rural community near the Pennsylvania border that sits over 50,0000 acres of the Marcellus Shale, for which XTO Energy – a subsidiary of Exxon Mobile – has paid farmers $110 million just for the chance to test.

Sanford has no land use restriction, and is governed by a town council eager to see  rigs and roughnecks role across the Pennsylvania border and clear pads in the meadows, fields and woodlots of Southern Tier farms. And according to some who have been engaged in the fight since it began with the leasing rush of 2008, the prospect of drilling in these places is more imminent following today’s court ruling.

The court decision in effect provides legal sanction to a plan proposed by Governor Andrew Cuomo in the summer of 2012 to begin issuing permits on a trial basis in areas where communities and industry favor development. As reported by Danny Hakim of the New York Times in June, 2012: “Cuomo’s administration is now trying to acknowledge the economic needs of the rural upstate area, while also honoring the opposition expressed in some communities, and limiting the ire of environmentalists, who worry that hydrofracking could contaminate groundwater and lead to other hazards.”

Walter Hang, a policy analyst who runs Toxic Targeting, an environmental data firm in Ithaca, said Cuomo’s plan from 2012, combined with today’s court ruling, moves New York state a step closer to fracking in these places. “Today’s decision serves up the Southern Tier on a silver platter to allow shale gas development to begin,” he said. “Sure, it prevents fracking in some areas. But it allows it in the five counties along the Southern Tier where it’s most likely to begin. It’s the classic double-edged sword.”

Cuomo’s plan in 2012 to begin fracking in certain localities but not others drew support for those pinning the promise of economic development on the drilling industry, and drew rallies and protests by anti-frackers, who characterized the fracking trials as “sacrifice zones.” Cuomo has been mostly silent on the issue since then.

Not everybody shares Hang’s outlook. Some anti-fracking activists expect that New York’s ruling will not only discourage shale gas development in New York but will also encourage other municipalities throughout the country to establish land use restrictions. (See comments of Mary Ann Sumner, the Dryden Supervisor who helped organize the ban.)  And Brad Gill, executive director of the Independent Oil and Gas Association of New York, called the court decision “one more nail in the coffin” for fracking in the state. Gill’s view, often echoed by other industry supporters, is that drill operators will be less likely to commit capital to area that lacks regulatory uniformity and predictability. There is truth to both of those views, but they overlook the fact that the industry, first and foremost, will follow the geology. Wildcaters, in particular, are likely to seek out niches in unexplored territories, like the Southern Tier of New York.

As with most policy calculations, science and law are fundamental factors, but politics will be the decider.  The Legislature could pass a bill clarifying ambiguous language over the state’s role in extraction operations on which the Home Rule case was built. It’s also possible that the Legislature could ban fracking altogether, although anti-fracking bills passed repeatedly in the Assembly over the years are yet to fly in the Senate.

For now the decision remains firmly in the hands of the governor, who can at anytime enact or withdraw the policy review of fracking, called the Supplemental Generic Environmental Impact Statement. The 1,000-plus page document is as complicated and bureaucratic as its name suggests,  and it's been on hold for years.  Don’t expect that to happen before election. Rocking the boat on this hypersensitive issue would certainly alienate the governor’s progressive base. But after election-day, he has plenty of politic wiggle room and, with today’s Court of Appeals ruling, a clearer view of the legal landscape.

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