Middlefield, NY Fracking Ban Stands in Court Decision

court gavelA second court case decision in New York, this one in Middlefield (near Cooperstown) has ruled that local municipalities have the right to ban shale gas drilling within their borders. On Friday, Feb. 24 Acting Supreme Court Justice Donald F. Cerio, Jr. ruled that a previously passed drilling ban in the Town of Middlefield in Otsego County, NY is legal. A copy of the judge’s decision is embedded below. (Note: Thank you to an MDN reader for providing this exclusive copy of the decision that comes direct from the judge’s chambers.)

Last June, Middlefield passed a zoning law banning heavy industry uses of land, including shale gas drilling. Diary farmer and resident Jennifer Huntington sued claiming the 380 acres of land she leased for drilling will not now be drilled, causing her company, Cooperstown Holstein Corporation, economic harm.

At issue is language in the state law which says that state law, and not local law, is preeminent in cases of oil and gas drilling. That is, local laws cannot supersede state laws when it comes to regulating oil and gas drilling. The argument by those against drilling is that to ban is not to regulate. Judge Cerio bought that logic and ruled against drilling.

A similar case in Dryden, NY (near Ithaca) also found the Town of Dryden drilling ban is legal (see MDN article NY Judge Rules Town of Dryden can Ban Shale Gas Drilling).

Context and Perspective

Both the Middlefield and Dryden decisions come from courts on the next-to-bottom rung of the court system in New York. Supreme Court in New York is one step up from county court. There are two levels above the Supreme Court level in New York State: Appellate Division of the Supreme Court, and Court of Appeals. It’s a foregone conclusion that one or both of these cases will now move to the next level for a new hearing.

It’s interesting to MDN to read the opening remarks in the decision. It shows who is pulling the strings in these court cases. At a minimum, we know that at least three or four local board members in Middlefield are against drilling and in favor of ceasing personal property rights away from their fellow citizens (people need to remember that at the next election). But this case was funded and aided by deep-pocket anti-drilling groups from outside of Middlefield.

There is a principle in the law called amicus curiae, a Latin term which means “friend of the court.” It allows people and groups that are not a party to a lawsuit to participate in the court proceedings in an advisory role, to provide their expertise and help in understanding the case. In the Middlefield case, here are the groups who were allowed to participate by Judge Cerio:

Village of Cooperstown
Otsego 2000, Inc.
Natural Resources Defense Council, Inc.
Theodore Gordon Flyfishers, Inc.
Riverkeeper, Inc.
Catskill Mountainkeeper
Town of Ulysses

Earthjustice, the NRDC, Theodore Gordon Flyfishers, Riverkeeper and Catskill Mountainkeeper are all environmental extremist organizations (none of which are from the Middlefield area). Their deep pockets helped fund the legal team that won this case in front of a local judge. On the other side was a dairy farmer and her lawyer. Anti-drillers so often try to position this issue as “big oil” and “big gas” with hordes of money against the little folk. Tell me, who’s David and who’s Goliath in the Middlefield case?

Earthjustice is the legal arm of the Sierra Club hiding under a different name. It’s headquartered as far as you can get from Middlefield—in San Francisco, CA. Here’s what they thought of the decision:

"We think it’s a great decision," said Deborah Goldberg, an attorney for Earthjustice who argued in court in defense of the town’s zoning law. "It’s a very thorough analysis of the legislative history and the passage of the supercession clause. The court comes to the conclusion that it is perfectly possible to have the state regulate the method of gas drilling while localities retain the power to regulate land use through zoning and local laws."*

Tom West was the attorney for Anschutz in the Dryden case. Here’s his salient observation:

"If the local bans are not overturned, very few companies will invest in New York state because their investment is at the mercy of a small town board’s vote," West said. "Who in their right mind is going to invest millions of dollars without some certainty that they’ll be able to drill?"

Of course having zero investment by drillers is just fine with the Earthjustice bunch. That’s their preferred outcome. They are not interested in safe drilling—it’s no drilling, period, for them. And they don’t give a flip about struggling farmers, about the thousands of jobs drilling provides, about new sources of tax revenues for local municipalities. No thanks. Just keep slapping up solar panels and plaster the hillsides with wind mills (as long as the wind mills are not in the back yard of a Sierra Club member, thank you very much).

*Wall Street Journal/AP (Feb 24, 2012) – 2nd NY court upholds town ban on gas drilling

See also:

New York Times (Feb 24, 2012) – Second Judge in State Backs Local Ban on Gas Drilling

Bloomberg Businessweek (Feb 27, 2012) – Natural Gas ‘Fracking’ Ban Upheld in Second New York Town

Reuters (Feb 25, 2012) – 2nd New York state judge upholds fracking ban in towns

  • http://www.facebook.com/profile.php?id=1625577642 Donna Malkentzos

    I understand each county wanting to show their muscle so to speak-however, if I cannot utilize my “paid for” land, of which I pay taxes for-well then perhaps we all need to stop paying taxes to a county that obviously dictates how we use OUR LAND!

  • Anonymous

    This is a ridiculous rant.  If you live in a residential area, you can’t use your “paid for” land to start a brothel, or to have any other practice that isn’t permitted in your area.  You can’t use it to store toxic waste even if you want to, without it being permitted by your community and/or the State.  You can’t even put a wind farm on your property without meeting years worth of requests and permit requirements (We know this as a private owner has tried to get a wind project off the ground for nearly EIGHT years in our community because of bureaucracy).  So, please don’t whine about what you can’t do with your own land.  When I can’t breathe or drink my water on MY “paid for” land, should I come to you to recoup my losses?  

    You are free to exploit your property in whatever ways your community deems legal and non-invasive.  

  • Anonymous


  • Anonymous

    All this nonsense falls right into the Martens/ Anti plan. Without Cuomo stepping up to do his job, and order Martens (a pawn in this game) to hire the people necessary to enforce the SGEIS there is nothing that can be done. Lawsuits should have been filed as soon as the moritorium  was put in place. It is now going into year 4 and everyone is sitting on edge about the big Andy-boy decision.Do not despair Donna NY law and our constitution will override any decision one Politician can make for us all. They will win the short term battle but lose the war in the end. That’s why Martens has not had the advisory board meet, or hire additional DEC workers. He knows that this battle is a few years down the road. The ” New” problem is in the Middle East. The perfect storm is brewing and there is nothing all these Liberals/Anti’s can do to stop the bleeding. When gas hits that $5.00 a gallon mark, the screams will be to loud , the economy will tank again, and Andy Boy won’t know where to turn with his BS/ borrowed money Jobs plan, because it will cripple the City and middle class.mcbetsy your one of those knuckle heads out there that actually believe that those wind turbines work, maybe for your toaster oven not to run a city or town. Have you ever seen a turbine farm? UGLY!! I’ll put money that your sitting snuggled in your little oil heated  house behind your computer run by dirty coal. get your head out of your but and realize that NG drilling is going to eventually happen everywhere.You’ and JW  will be the first ones in line to buy the cheaper fuel too. I just fill my truck up today, where I live gas its $3.59 per gallon, cost me $108.00. Are you freaking kidding me!! Why are you not bitching about that? I also know the majority of that money is going overseas or worse to Chavez. Mcbetsy, you good with that too? Wake up man, your fighting the wrong fight,get off the OPEC nipple, help not hinder America’s recovery. You will lose in the end either by Big NG companies selling it overseas( which is happening now) or by OPEC raping you until you cant drive your Subaru out of the driveway( that is also happening NOW). Your last sentence to Donna was the only one that is true. Freedom to use your property to prosper is written in NY Law and the Constitution. Our Governments job is NOT to say you can not . Their Job is to protect and defend that right. That’s why they spent the last 3 years enhancing the SGEIS. All, us Pro’s have been patient and respectful of the process, up until now .All we want is for them now to move forward and DO their job, the last I looked we are still a free Country, if you don’t like it move,I’ll buy you land.

  • Chatty Kathy

    Liberals have always raised all kinds of irrational or exaggerated fears about new technologies that create jobs. In the past, they raised a bunch of hype about DDT, asbestos, and nuclear radiation, and to this day greatly exaggerate the harms of these things.

    Now liberals are worried about BPA in our food packaging, hydraulic fracking, “pink slime”, industrial “air and water pollution” (I call it “jobs creation”) , and so forth. There’s no end to the silly things liberals worry about. No matter how many times they’ve been wrong in the past on environmental and health issues.

    Hydraulic Fracking is just one of the newer jobs creating inventions that liberals focus on attacking. Obviously they don’t want more jobs to be created or they would support fracking.

    Job Creators create more jobs through hydraulic fracking, because more profit is earned through a more cost-efficient way of drilling for petroleum-based fuels.

    Libs whine about “water contamination”, when it’s really a guise to hide the fact that they envy the rich who profit off of hydraulic fracturing. The water receives no contamination, and they could just buy bottled water if it bothers them so much.

    Liberals prove time & time again that they are Marxists who hate the free market, and will use any issue to declare class warfare against the Job Creators.

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