NY Landowner Coalitions Push Back Against Home Rule Bill

The fight to allow safe natural gas drilling to commence in New York State is being fought on multiple fronts. One of the most prominent groups standing up for landowner rights in New York is the Joint Landowners Coalition of New York (JLCNY). The group is in essence a “coalition of coalitions,” representing 38 landowner coalitions with an aggregate 800,000 acres of land in the Marcellus Shale.

The JLCNY issued the email below, outlining their opposition to yet another attack on drilling in the state—new legislation proposed by State Senator James Seward (Republican) that would tie up drilling in the state by allowing local municipalities to ban and regulate drilling within their borders.

Dear Friends and Natural Gas Supporters,

As you may recall from earlier emails, the biggest threat all NY landowners face right now is the Home Rule bill proposed by Senator Seward.

As part of the fight to secure your rights to use your land as you see fit and safely develop your natural gas, the JLCNY has sent the following letter Senator Seward. We then provided copies to Governor Cuomo and all NY legislators. It explains our position on Seward’s proposal and the reasons that we feel that it should be rejected with no further consideration.

January 17, 2012
The Honorable James L. Seward
41 South Main Street
Oneonta, NY 13820

Re: Home Rule and Natural Gas Development

Dear Senator Seward,

The Joint Landowners Coalition of New York, Inc. (JLCNY) is a nonprofit corporation whose mission is to foster, promote, advance and protect the common interest of the people as it pertains to natural gas development through education and best environmental practices. The JLCNY represents 38 independent landowner coalitions throughout New York whose members own over 800,000 acres of land over the Marcellus Shale natural gas deposits. We are especially active in Otsgeo, Cortland and Tompkins Counties with the Unatego Landowners Group, the Worcester Landowners Coalition, Central New York Landowner’s, County Line Landowners Coalition, Taylor Land Group and Tompkins Landowner Coalition. The JLCNY would like you to consider the following information related to oil and gas drilling and your Home Rule bill.  We hope you will realize how damaging your proposed legislation would be to New York and our landowner members.

In the 1970s, New York experienced many problems with the regulatory program for the oil and gas industry when municipalities began their own regulatory initiatives. This local regulation of the oil and gas industry resulted in several problems, including:

  1. Safety concerns resulting from untrained local staff going onto well sites;
  2. The significant costs to hire proper professional petroleum engineer staff, which was often too burdensome for local municipalities;
  3. A patchwork of local regulation, which resulted in differing requirements for drilling unrelated to geology;
  4. Financial security at both the local and State levels;
  5. Conflicts between municipal boundaries and setbacks; and
  6. Exorbitant local taxation.

In 1981, the New York Oil, Gas and Solution Mining Law was amended to include the following supersedure provision in ECL §23-0303(2):  “The 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.”  This amendment was enacted with the clear understanding that the supersedure clause extinguished the right of municipalities to regulate any aspect of oil and gas development including the right to zone oil and gas wells. There was never any intent to allow a local government to extinguish the mineral rights of any landowner by zoning out oil and gas development.  Rather, ECL §23-0303(2) was intended to strengthen the rights of landowners to recover their subsurface minerals, or have others do so for them, unfettered by any local regulation.

Furthermore, ECL Article 23-0301 declares it to be in the public interest to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste, to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had, and that the correlative rights of all owners and the rights of all persons including landowners and the general public may be fully protected. Your legislation will allow municipalities to make decisions that conflict with the state’s public interest.

There are 2 cases pending in the New York State Supreme Courts, Cooperstown Holstein Corporation vs. Town of Middlefield and Anschutz Exploration Corporation vs. Town of Dryden and Town of Dryden Town Board. These cases will define the parameters of ECL §23-0303(2).  We believe strongly that NY courts will confirm that municipalities cannot regulate oil and gas and that a ban on oil and gas is the ultimate regulation.

Many municipalities in New York have been persuaded by those opposed to drilling to enact drilling bans.  Most of the local legislators supporting these bans have little or no knowledge about the oil and gas industry. The City of Binghamton recently enacted a ban. Not a single member of the Binghamton City Council has ever visited a well site. This is exactly the scenario that the 1981 legislation sought to avoid. Your bill threatens to return New York to the period of chaos that existed prior to 1981. This will unquestionably chill the oil and gas business in New York and prevent our state from realizing the benefits this industry will bring.  It will also frustrate the energy policy of the entire state.

Your legislation also threatens to shut down the existing oil and gas business in New York. Municipalities are enacting bans not just on high volume hydraulic fracturing but on all drilling. New York will lose opportunities associated with the development of shale gas and it will kill existing conventional drilling.  It will also expose municipalities to landowner claims for the taking of their rights to market their minerals.

How could an industry willing to invest billions of dollars do business in a state where we would allow local legislators, of varying levels of experience, to dictate whether or not drilling will occur on a 3-2 vote of a town board?  Town policies on drilling could conceivably change every election cycle. And, what will happen when one municipality says no to drilling and an adjoining municipality says yes?  The result will be a patch-work of areas where drilling may and may not occur – constantly changing.  Obviously this makes no sense.  That is why this decision should be left in the hands of the DEC.  The DEC will act in a manner consistent with our state environmental conservation laws and our energy policies while protecting our environment.

Please feel free to contact me if you would like any additional information on this topic.  Thank you for your consideration.

Joint Landowners Coalition of New York, Inc.
Dan Fitzsimmons, President

In addition we sent the article attached here with the letter. It was written by Scott Kurkoski, the JLCNY’s attorney, and published in the New York State Bar Association Journal’s January 2012 issue. It is a well written and thorough summary of the landowner’s “Point of View”. It will be instrumental in educating those in Albany about our situation and having them recognize that developing our Natural Gas is in the best interests of you and all of NY.

As effective as we expect this information to be, some help from you will be even more productive.

Please take a moment to complete the “Take Action” linked to here.

It is fast, simple, and free. Best of all, completing it will convey your support for Natural Gas louder than anything else we do.

Finally I’d like to ask you to please share this information with your friends, family, and neighbors. The more that we all speak up now, the sooner we can put this debate to rest and get on with enjoying our land.

Warmest Regards,
Dan Fitzsimmons, President
Joint Landowners Coalition of NY