A 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.
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
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