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.

Ruling allows Scroggins back on Cabot-leased land Fracking activist will fight buffer zone in May trial

Update, April 30 2104: Scroggins V. Cabot trial, set for May 1 in Montrose, Pa., postpomed until July 2.

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A ruling Friday by a Pennsylvania judge to allow activist Vera Scroggins back on land leased by Cabot Oil & Gas is a “big win” according to her legal team, but the fight will continue in a trial scheduled for May 1.

An order, drafted by Cabot attorneys and handed down by Judge Kenneth Seamans in October, barred Scroggins from setting foot on land owned or leased by Cabot, “including but not limited to” well sites, well pads, and access roads. That language kept Scroggins from approximately 200,000 acres -- nearly 40 percent -- of Susquehanna County where Scroggins lives, including property of friends, neighbors, stores, parks, schools and health care providers.

After a hearing Monday, Judge Seamans modified the injunction to restrict Scroggins only from work areas designated by no-trespassing signs and a 100-foot buffer zone. The new order, issued on Friday, allows Vera to enter other land leased by Cabot, including markets, public spaces, physicians offices, and hospitals. It also allows her to use public roads that go by work sites, but the ruling stipulates that she cannot stop or linger at the entrances to access roads.

In an interview Friday with Associated Press reporter Michael Rubinkam, Scroggins’ attorney Scott Michelman characterized the revised order as “a big win,” but he added that the 100-foot buffer could pose unjustified restrictions. Scroggins said the revised order was “a step in the right direction. ” She told me today that she and her legal team will fight the buffer zone at a trial scheduled for May 1.

Scroggins’ vantage point was mostly from public roads by drilling sites, although Cabot claims that she also trespassed onto private land under lease by the Texas drilling company, posing a safety risk to herself and others. In a statement Friday, Cabot officials said they were "satisfied” with the ruling to maintain an injunction against Scroggins that “protects Cabot and its employees, contractors and others” and “keeps landowners from being exposed to liability that could arise from Scroggins' actions."

One of the main questions to be resolved: Is a buffer zone, which does not apply to other citizens, necessary to protect the health and safety of Scroggins and others, as Cabot claims, or is it being used by Cabot to discourage anti-fracking activists from filming or viewing Cabot operations from legitimate vantage points, as Scroggins claims.

Scroggins has taped and posted hundreds of video files on You Tube showing drilling operations in Susquehanna County since 2009, including spills, clean-ups, and discharges. The videos cast operations in a way that runs counter to the industry’s portrayal as clean and safe. Scroggins has also lead tours for political action groups, academics, journalists, and other interested parties visiting the area to learn more about drilling and the controversial practice of high volume hydraulic fracturing to stimulate the gas wells.

Cabot Oil and Gas v. Vera Scroggins

Cabot v Scroggins = heat over land rights, speech, fracking Pa. court considers injunction to limit activist’s actions

Vera Scroggins and her lawyers (left) at the Montrose courthouse Monday

A confrontation over free speech and land rights that began inside a courthouse in Montrose, Pennsylvania this morning grew more contentious outside, as lawyers and demonstrators took their arguments to the courthouse steps and parking lot.

The hearing, in the Court of Common Pleas before Judge Kenneth Seamans, involved what degree Cabot Oil & Gas can limit activist Vera Scroggins in her attempts to videotape drilling operations and related activity. The company has faced public relations and environmental problems in Dimock township after the state Department of Environmental Protection held Cabot's operations responsible for polluting an aquifer that supplies dozens of homes in Dimock Township.

Scroggins has taped and posted hundreds of video files on You Tube showing drilling operations in Susquehanna County since 2009, including spills, clean-ups, and discharges. The videos cast operations in a way that runs counter to the industry’s portrayal as clean and safe. Scroggins has also lead tours for political action groups, academics, journalists, and other interested parties visiting the area to learn more about drilling and the controversial practice of high volume hydraulic fracturing to stimulate the gas wells.

Scroggins’ vantage point was mostly from public roads by drilling sites, although Cabot claims that she also trespassed onto private land under lease by the Texas drilling company, posing a safety risk to herself and others.

One basic question before the court was whether Scroggins willfully and habitually trespassed. Her lawyers said that drilling zones were not always clearly marked with no trespassing signs, that Scroggins' ventures into drilling territory in each case were in good faith to openly ask questions and seek information, and that she always complied if asked to leave.

Two other questions, however, make the case a potential landmark test of a company’s control over property it leases but does not own. The first question is whether Cabot can legally keep Vera away from leased land, including access roads, with a buffer zone that extends into adjoining public roads and right-of-ways. The second question is whether a party that owns sub-surface rights but not surface rights can legally act as “gatekeepers” for who can and cannot come onto the land. Can a mineral rights lessee forbid a person who has been invited onto the land by the property owner to view operations?

Seamans granted the injunction in October, after Vera appeared in court without an attorney to answer the trespass charge.  Since then, the case has generated interest and outrage among activists who say Cabot is restricting limits on Scroggins’s constitutional right to report what is happening in her community, and its actions have a chilling effect on others. Attorneys Scott Michelman, of the Public Citizen Litigation Group in Washington, D.C. and Gerald Kinchey, in private practice in Sayre, Pa., have taken up Scroggins’ case pro bono.

Ostensibly, the injunction was designed to keep Scroggins away from work areas for safety reasons. But technically, the language forbids Scroggins from setting foot on land owned or leased by Cabot, “including but not limited to” well sites, well pads, and access roads. That phrasing is what makes the case a possible watershed. The Texas drilling company has leases on more than 200,000 acres -- nearly 40 percent -- of Susquehanna County where Scroggins lives, including rights to property of friends, neighbors, stores, parks, schools and health care providers. Obeying the injunction has required both active research to find out what land is leased, and also avoidance of places that she would normally go without thought.

At today’s hearing, Cabot proposed an alternative plan that would ban Scroggins from 150-foot setbacks from access roads and 500-foot buffer zones from work sites. Cabot attorney Amy Barrette, of Norton Rose Fulbright, argued the setbacks were necessary because “given Ms. Scroggins’ past conduct, if you give her an inch, she will take many, many miles, and she will be up on the well pads.”

Michelman argued that the order went well beyond addressing safety concerns and posed “a chilling effect” on the speech and actions of activists who wanted to call attention to fracking operations. An injunction that prevented Vera from entering designated work sites would be reasonable, he said, but not a buffer zone. He pointed out that such a zone could keep Scroggins from certain parts of public roads as well as areas that property owners are allowed on, even if they invited her to go with them.

The broad scope of the injunction is not about safety, but a ploy to intimidate activists, Michelman said in an interview after the hearing. “It tells them you will pay for exposing what is going on at these sites. You will pay for speaking out against the big oil and gas companies.”

During the hearing, Kinchy argued that, unless it is specifically written in a lease, the lessor of sub-surface rights does not have the right to dictate who can and cannot come onto leased property. That principal will be relevant if the case goes to trial. Jeremy Mercer, a lawyer for Cabott, rebutted that Pennsylvania case law does in fact give mineral rights holders such rights.

Seamans adjourned the hearing after attorneys from each side agreed to send the court versions of the order that they could live with. Judging by the arguments, that would be in Scroggins’ case an injunction that keeps her from well pads, work areas, and access roads, and in Cabot’s case an injunction that keeps Scroggins from both these areas and specified setbacks from these areas. The case is scheduled to be tried May 1 unless the parties can come to terms.

A small group demonstrated support for Cabot 

More than 120 people attended the hearing, many of them activists from outside the area who were there to support Scroggins. A contingent of a half dozen or so drilling proponents, including some local landowners, demonstrated support for Cabot’s position.

After the adjournment, the crowd swarmed outside the courthouse where both pro-drilling and anti-fracking groups held press conferences. In a rally on the courthouse steps, drilling supporters held signs that said “Drill Baby Drill” and “Vera Get Off Our Land.” At the same time, a mix of Scroggins supporters and adversaries gathered in the corridor that lead to the back parking lot. Vera had sat quietly during the hearing and let council do the talking. Now, flanked by her lawyers, she used the platform to criticize the industry’s safety record and to call for more scrutiny.

“It sends a message that if you speak out, you will pay. This is an outrage,” she said, citing violations that the state has issued the company. “Why are they allowed to operate?”

Barrette (right) argues with Michelman over intention of Scroggins injuncttion

After about 10 minutes, a sheriff’s deputy told the crowd to go outside because the congestion in the hallway was posing a hazard. About this time, Barrette, Cabot’s attorney, shouldered her way through the crowd to Michelman, who was standing next to Scroggins. After an exchange, they exited to the parking lot. Some of the conversation was lost in the noise, but it had to do with the merits of the injunction and the way it was written.

“Did you draft that order?” Michelman said as the two faced each other in the parking lot.

“Yes, and the order was not sought to keep her from the hospital or any of those other places,” Barrette replied.

“Its language was categorical,” Michelman said. “If you wanted something different, you should have drafted it more carefully, and if you didn't like what the court entered you should have moved to modify it. You could have done that in the last five months.”

“We gave you a very narrow proposal that you rejected many times,” Barrette said, as a cluster of reporters and spectators caught up with them. “We'll let the court decide.” Barrette referred questions from reporters to George Stark (a company spokesman who has not returned my calls) and she walked away to rejoin the pro-drilling group in the front of the courthouse.

Shale Shock Media captured some of the events following adjournment, including the confrontation in the parking lot, in the video below: