Another Look at the Dryden Fracking Ban Court Decision

Last week, New York State Supreme Court Judge Phillip Rumsey ruled that the Town of Dryden has the right to ban gas drilling within its municipal borders (see this MDN story). As MDN pointed out, this is “round one” in the fight for landowner property rights. The Supreme Court in New York is only one step above county court. The Court of Appeals is the highest court in New York State.

Others have weighed in on the Dryden decision, including the Dryden Safe Energy Coalition (DSEC), a pro- but very much safe-drilling group headquartered in Dryden. From the DSEC press release following the decision:

The Dryden Safe Energy Coalition has read with interest the decision of State Supreme Court Justice Rumsey in the Anschutz suit against the Town of Dryden.

Henry Kramer, attorney and co-founder of DSEC noted, “We are a long way from a Court of Appeals decision that would set statewide precedent.  Anschutz has some choices to make.  Their options include an appeal to the Appellate Division.  Or they could decide not to appeal the zoning issue and instead proceed to a suit for an entire taking of their property interests in the Town of Dryden, valued at five million dollars.  So, while the Town may win the zoning battle, it may suffer ultimate defeat if the courts require the Town’s taxpayers to pay for the property rights the Town took.”

“Further, the court found a technical reason to throw out some legislative history of the Environmental Conservation Law, whose preemption provision was written specifically to stop local regulation of vertical drilling.  In its analysis that the mining and oil and gas laws are substantially the same the court overlooked a guiding principle of statutory interpretation, that the Legislature’s use of words is informed and that every word and difference is intended to have meaning.  Reasoning by analogy from differently worded statutes is dangerous.  They are different, not by accident, but for a reason.”

“We caution against drawing too many conclusions from this decision.  We are certain that activist groups will seize on this decision as though it was the final word.  We anticipated, and continue to anticipate, that is merely the first round in a long and drawn out legal battle.  Undoubtedly it will spawn more bans and moratoria as those opposed to energy development seek to prevent any production of fossil fuels in New York State and look to this decision for support.”

DSEC co-founder Tom Reynolds said, “today’s decision means local pocket majorities will be able to create a patchwork quilt of regulation differing about every ten miles and changeable by election every two years instead of providing New York with a uniform standard designed and implemented by an expert agency.  If sustained, the decision will probably show that New York is not serious about being open for business and lacks real concern for jobs, the economy, and high paying work opportunities for the 22% below the poverty line in Tompkins County.  The message has implications for any business considering coming to New York.”

DSEC co-founder Tracy Marisa said, “the decision allows towns to override any personal landowner choices about what to do with their land.  The Town’s ban takes away that freedom and the Town makes the decision for all.  Thus the decision is not only about hydraulic fracturing but also represents a loss of personal freedom of choice and vests ever more power in government.”*

In addition, Tom Shepstone, Northeast Marcellus field director for Energy in Depth, has written an excellent critique of the decision: Will the Dryden Turkey Fly? I highly recommend you read it.

If Anschutz decides to walk away from Dryden, the five board members who voted to enact this ban will have placed all of the people they represent on the hook to pay Anschutz more than $5 million—at a minimum. Dryden residents will get an early Christmas present the next time they open their property tax notice. One has to wonder who the real losers are in this case.

*Dryden Safe Energy Coalition (Feb 22, 2012) – Dryden Landowners Appalled by Decision: DSEC Press Release

  • Thanks, Jim–Tracy, DSEC

  • Anonymous

    Jim- Let’s say Cuomo pushes the button and gives the go ahead for Drilling. Who will now come to the state knowing the local municipality might impose a ban on HVHF?? In the case here with Anschutz, they contracted these leases when HVHF was still legal to do under the current laws imposed by the DEC, who have (or had) jurisdiction over any local laws (or injuction for that matter). That being the case, they will now have to sue to reclaim monies paid to land owners regarding these leases and possible profits made from extrraction. I have yet to see any of the land owners or groups who wish to lease (The JLCNY would be one that comes to mind) threaten to sue the Town board of Dryden. The town board has taken their rights as owners to utilize their land and profit from it’s use. I believe this should be the start of the “litigation war”. The only way I could see it end is to have Cuomo enact an Executive order which would stipulate the DEC laws have the jurisdiction to supercede all local laws in the matter. This will become a true test of his leadership. Will he lead by taking the easy way out and letting the courts do his job or will he finally say enough already! NY needs this industry and do what it takes to make it happen….If I am pondering these things, what are the CEOs of Hess, Shell, Exxon, etc. etc. saying. Seriously, I’m just a guy with a pittance of acreage, what’s the head of a 100+ Billion dollar a year company saying??  

  • Michael Dineen

    If the takings argument were as strong as DSEC believes it to be, then Anschutz would have already used it against Dryden and Middlefield. It wouldn’t make sense to use your weakest case first and risk losing. Such a strategy, as the quoted DSEC representatives attest, only strengthens the opposition and leads to more bans and moratoriums. The only hope now is to go straight to the State and get a law passed like the one in PA removing land use authority from the towns.

  • Anonymous

    The NYS legislature is unlikely to overturn a court decision preserving home rule over gas drilling as long as the Assembly is in Democratic hands.  And even if both houses of the legislature passed such a bill and the governor signed it, it is not clear that such a law would be constitutional.

    Executive orders are formal instructions to the agencies of the executive branch.  Cuomo could not order the courts to change their decisions, nor could he order DEC to disregard the law.

  • Anonymous

    The Moratorium that exists in the state right now is an Executive order usurping an existing law under the guise of further study for safety of the citzens. He could also lift that order thus permitting drilling to RESUME (what we are all waiting for) under the current laws. Obviously he cannot have the DEC break the law, but he can order them to open drilling for the rest of the state where these tissue paper laws do not exist. When the money and tax revenue starts rolling, and these small towns find themselves being sued and losing money instead of making money for it’s citizens, all this will end. It is up to Cuomo to get going, although the more he waits the harder it will be. Let’s see what kind of leader he will be. He is being slapped around by town clown officials. It’s pathetic.
    A law will not have to be passed in the legislature but it wouldn’t hurt to have one to avoid the holes that are now being exploited in the exisiting G&O mining law. There is a difference in surface mining and sub-surface mining that why there are laws exisiting for for each respectively. The Judge in Dryden used surface mining laws to influence his descision. They should not have even entered into the equasion. That will be seen in the higher courts, and this WILL get overturned. This is just a waste of time and money.

  • Anonymous

      Ultimately, the only way to overturn these bans may be by example.  Even in NY, not all towns will zone out drilling, probably be even most of them.  If industry drills responsibly, by minimizing damages and compensating towns and individuals, and if the benefits of jobs and taxes outweigh the costs, then towns will drop their bans.  However given how they have operated in PA, I have my doubts
      Vertical drilling may have less effects on the surface than one vertical one, but not so horizontal which can have 6 to 12  wells on a pad.  All these wells are drilled and completed over several years and then possibly refraced.  Such a pad can become an industrial site for a decade, much like a gravel pit.  Also the necessary infrastructure of water recycling plants, central impoundment facilities, compressor stations, etc. would be semi-permanent.

  • Anonymous

    The fear of energy companies punishing NY is being dramatized.  The oil and gas business plan that works in the West on large tracts of private ranch or public/BLM land does not work in the populated cookie cutter lands of the East.  There was little to no communication or interaction with landowners or the public after the initial wave of lease signing.  Energy companies will lose some battles and adjust their business plan.  The volatile nature of doing business in the Middle East has not caused Shell, XOM, Total, BP, Chevron, Conoco Phillips and the other major energy companies to fold their tents and go home.  NY is probably on the last page of their Monday morning agenda.  

  • Anonymous

     I agree YB for now, but at $5.00 per gallon, that just wont fly for long.All those companies mentioned above have embedded in Middle East Oil for decades. Change is always slow, but inevitable given the climate over there. Our economy can not withstand those prices and will only fuel the fire for the alternative. Knowing what we know now about the amounts of Oil and NG that are here is this country can not sustain just reasoning for buying it from OPEC. We just need Politicians that have the balls to make the “big” decisions and stop taking payola from the Middle East lobbyists, then watch all those companies mentioned above shift gears. Then NY, North Dakota, Wyoming, Louisana, Alaska, Montana,PA, Ohio, WV,and our fine neighbor Canada will be front page news. Then the Middle East can be a thing of the past, with a sigh of good riddens. We can also get ALL our troops home, remember them?

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