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June 5, 2014

Top state court hears fracking appeal

By Joe Mahoney The Daily Star
Cooperstown Crier

---- —  ALBANY — Lawyers on both sides of the high-stakes debate over whether town governments are empowered to zone out gas drilling were barraged with pointed questions from justices of New York’s highest court Tuesday.

The Court of Appeals heard arguments in two cases, Cooperstown Holstein Corp. vs. the town of Middlefield and Mark S. Wallach vs the town of Dryden, that were joined together for a hearing expected to define once and for all if municipal governments are preempted from having any say over the siting of drill pads within their boundaries.

A ruling is expected next month.

Scott Kurkoski, the attorney for Jennifer Huntington of Middlefield, the owner of Cooperstown Holstein Corp., argued the state Oil, Gas and Solution Mining Law makes gas drilling regulation the province of the state Department of Environmental Conservation in order to avoid “not in my backyard” viewpoints from interfering with energy policy.

That remark prompted Chief Judge Jonathan Lippman to comment: “There’s a flip side to that argument, which is, don’t bulldoze over the voice of the people in individual municipalities who want to be heard about how they live their lives,” Lippman said.

Lippman and his colleagues also questioned why the Legislature, if it intended to keep towns out of the mix, did not specifically weave into the statute that towns were preempted from adopting zoning changes that kept out drilling.

Justice Victoria Graffeo said some of the arguments before the Court of Appeals would have the justices “stepping into the void the Legislature hasn’t addressed. Apparently there is an impasse with them trying to pass statewide clarification here as to whether it’s preempted or not preempted. We have to deal with the language of the statute.”

Representing Dryden, attorney Deborah Goldberg of the nonprofit environmental firm Earthjustice, said there is a “huge contrast” between the law being scrutinized and other laws that specifically address the zoning powers of local governmenwt. She said the oil and gas law is “silent” on that question.

Asked by Justice Robert Smith how the state could foster a vibrant energy industry if drilling decisions were left to towns, Goldberg said: “Precisely the way Texas does it, and Oklahoma does it, and California does it and Illinois does it, and California does it, where all localities have the right that we’re talking about here, and the industry is thriving. This industry figures out what the lay of the land is, and it manages to accommodate itself.”

Gas industry lawyer Thomas West, representing Wallach, the trustee for bankrupt Norse Energy Corp., told the justices that a ruling upholding the local bans would make energy companies think twice before setting up drilling operations in New York, even if Gov. Andrew Cuomo’s administration authorizes fracking.

“No prudent operator is going to a town even if they allow it if they’re going to be subject to a 3-2 local vote that could change,” West argued before the court. “It would have a very chilling effect because it’s very hard for operators to justify spending the hundreds of millions of dollars to come in and not have regulatory certainty.”

John J. Henry of Albany, representing the town of Middlefield, said a decision upholding the ability of towns to zone out heavy industry would be consistent with the courts’ earlier rulings.

“This court has consistently recognized that zoning is one if not the most fundamental power of a town,” Henry said.

So far, more than 70 New York towns have banned hydrofracking and another 120 have imposed moratoriums, said Helen Slottje, a lawyer who helped a number of towns in Otsego and Schoharie Counties enact gas drilling prohibitions.

Approximately 40 towns, many in the Southern Tier, have enacted resolutions in support of natural gas drilling.

Middlefield Town Supervisor Dave Bliss attended the court arguments, along with Otsego 2000 Director Ellen Pope, Brewery Ommegang communications manager Larry Bennett and Julie Huntsman, an Otsego town councilwoman who is also co-coordinator of Elected Officials to Protect New York.

Ommegang and Otsego 2000 joined a so-called amicus curiae, or “friend-of-the-court” brief, that supported the Middlefield ban, and the town of Otsego has enacted a similar ban.

“I’m optimistic the court will uphold our law,” Bliss said. “The judges have to play devil’s advoccate, trying to get both sides to reveal whatever they can get them to reveal. I feel our attorney (John J. Henry of Albany) did a great job.”

So far, advocates for home rule have been on the winning side. Last year, the mid-level appellate division affirmed a lower court ruling in dismissing the lawsuits aimed at upending the Middlefield and Dryden bans.