Tuesday, September 20, 2011

Quote of the Day: "The Town is Not Regulating Gas Drilling. It is Banning It"

As communities in West Virginia are repealing their ill conceived bans on hydraulic fracturing and West Virginia courts are busy striking down those very bans, citing that state Department of Environmental Protection has "exclusive control in this area of law", town boards in upstate New York are continuing to put on a good face as they prepare for their day in court. Behind the scenes though, they are increasingly uneasy with regard to the legal positions they have staked out.

From the West Virginia Record:

A Monongalia Circuit Court judge last week struck down a ban on fracking by the city of Morgantown, saying the state Department of Environmental Protection has "exclusive control of this area of law."


According to the court, the doctrine of preemption is applicable law when the State has assumed control of a particular subject of regulation, and a local government has enacted an ordinance in the same field.

When a state law fully occupies a particular area of legislation, indicated by the State's comprehensive regulatory scheme, no local ordinances will be permitted to contravene it, Judge Susan B. Tucker wrote in her Aug. 12 order.

Tucker said the legislative purpose of the WVDEP is clearly set forth in state code.

"The legislation sets forth a comprehensive regulatory scheme with no exception carved out for a municipal corporation to act in conjunction with the WVDEP pursuant to the Home Rule provision," she wrote.

"In fact, as set forth in the legislative statement of policy and purpose governmental entities are required to supplement and complement the efforts of the State by coordinating their programs with those of the State."

That reasoning sounds familiar. According to Article IX (§ 2,subd. [c], par. [ii] ) of the New York State Constitution specifies that any local law be “not inconsistent with…any general law.” The State Constitution further provides that the legislative power of local government is limited “to the extent that the legislature shall restrict the adoption of such a local law.”

Plus there is this from New York Environmental Conservation Law Section 23-0303(2) which specifically provides that: “[t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”

Well that certainly can't sound promising to the anti-gas crowd and it has to be purely frightening to those town board members who wrote those laws and are now in the position of looking foolish in front of their constituency while at the same time attempting to justify the funds needed to defend these rules in court. As I have learned, "it does not come under normal town business, and will cost the town extra to handle". Now this is reassuring. Wonder when the Park Foundation and the Heinz Foundation will show up with their high priced lawyers and buckets of cash to offset the cost of the people who are being financially hurt twice on this issue.

Today the Daily Star, Oneonta's premiere and only newspaper did some reporting on the Middlefield lawsuit that has been filed by Cooperstown Holstein Corporation. In the article there are some very interesting tidbits of information that is worth noting. First is the name Jennifer Huntington who is president of Cooperstown Holstein Corporation. Look for her name to be sullied as things move forward. She is fighting the fight many of us are too afraid to fight and she has my respect. The second name of import is that of Scott Kurdowski of Levene, Gouldin & Thompson LLP of Binghampton. This is the law firm representing the Middlefield company and selected this as the test case.

The lawsuit seeks to declare the provisions of the town's zoning law pertaining to oil and gas drilling void and in violation of New York state law, Kurkowski said.

The goal is to establish precedent in this case, he said.

The local ban violates New York's Environmental Conservation Law, which states that all local municipalities are preempted from passing local laws relating to the regulation of the oil and gas industries, Kurkowski said, adding that a similar ban was overturned by a court in West Virginia.

Interesting that the goal of this lawsuit is to set precedent. I don't think a law firm, with the ability to pick and choose cases would jump on the first frivolous case to show up at their door. Everyone knows this dispute will likely be settled before the NY State Supreme Court and there are reputations on the line and cases must be strong and compelling.

This brings me to the defense. Attorney David Clinton, from the firm Gozighan, Washburn & Clinton who represents the Town of Middlefield in this case doesn't sound very sure of the the position he finds himself and gives the sense that he is a bit taken aback by this suit coming from a landowner and not a gas company. Much harder to demonize of farmer than an oil company. He adds, "[t]he town is not regulating gas drilling. It is banning it." This is not a defense, it is a confession. Banning an action seems to me as the ultimate regulation. He continues, "[i]t comes down to the law and how it should be interpreted." This is true, but it seems a bit of a stretch to argue that banning is not a form of regulation. I don't expect he will be defending the Town of Middlefield for very long.

The entire article is pretty interesting as are the comments, so as always, read the whole thing.

For more on the legalities in play read this article posted an EID Marcellus - Here's a novel idea - follow the law.

All bolded portions are at my discretion.

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