March 14, 2013
Drill ban appeal on docket
5-judge panel will hear gas company challenge to Dryden zoning
DRYDEN — A Norwegian energy company will seek to overturn Dryden’s zoning ban on hydraulic fracturing during an appeal hearing next week in Albany.
The case’s final outcome will determine how much local land-use authority a municipality has when regulating drilling.
Oil and gas lawyer Tom West will continue to argue state law only allows local control over roads and taxes. West is representing Norse Energy, which took over the case last year from Colorado-based Anschutz Exploration.
West, representing Anschutz at the time, sued the town of Dryden in 2011, arguing the town’s zoning prohibition was illegal under state Environmental Conservation Law.
In February 2012, state Supreme Court Justice Phillip Rumsey upheld Dryden’s zoning law amendment. West later appealed that ruling, representing Norse, which had acquired land leases in the town from Anschutz.
The hearing Thursday begins at 9:30 a.m. Deborah Goldberg, an attorney with the New York City firm Earth Justice, is now representing Dryden.
Norse Energy opposes Dryden’s August 2011 amendment to its zoning law that banned heavy industry in the town, including gas drilling.
Dryden was among the first towns in the state to enact a ban through zoning. Dozens of towns have followed with similar land-use bans.
The case focuses on the question of whether state law governing the oil and gas industry pre-empts local land-use regulation, said Goldberg.
“We argue that it doesn’t pre-empt it at all,” Goldberg said. “The zoning amendments that were passed are a land-use regulation, which is traditionally and quintessentially a local function, not something the state typically gets into.”
Goldberg argues the town has the right to decide what uses are appropriate within its borders.
“There are a number of quiet, rural towns throughout this state that do not want to have heavy industry throughout their towns so they do not have zoning that allows for heavy industry like oil and gas,” she said.
But West argues that a state Environmental Conservation Law, called the Oil, Gas and Solution Mining Law, is very clear.
It prohibits municipalities from regulating aspects of oil and gas exploration, operations and development, West says.
He also argues that the Environmental Conservation Law is different from a mining law that the lower court compared it to and which Goldberg draws comparisons to in her arguments.
West says he plans to show in court next week how different the laws are.
Since the lower court ruling is based upon a precedent set by the New York Court of Appeals’ decision in hard rock mining cases, West wants to differentiate these cases from the oil and gas case facing Dryden.
“That issue is like a fork in the road for the court to either say the language is similar and we’ll follow the hard rock mining precedent or say the language is different and we don’t,” West said.
“We think that the hard rock mining cases have kind of led the court astray,” he added.
West said he is looking forward to having a five-judge panel decide the issue.
A decision would be expected within six to eight weeks from the time of arguments.
Goldberg said that whoever loses would have to file a motion to the Court of Appeals requesting an appeal to be heard. If the Court of Appeals agrees, then it would set a briefing schedule.
West could not predict what course of action Norse would take if the court rules against the industry. He lamented what he sees as an environment of opposition to gas and oil drilling in New York state.
“It leads to great uncertainty in developing a resource in New York state because essentially a town can decide by a 3-2 majority vote of a town board to enact one of these laws,” West said. The result, he added, is that gas companies lose a significant investment in mineral rights in an area.
West said if the right of municipalities to ban the industry is upheld, he could foresee gas industry operators suing municipalities for the value of lost mineral rights.
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