West Firm Law bLAWg

Tom West and Cindy Monaco to Speak at Shale Plays Conference in Texas

Thomas S. West

Cindy M. Monaco

West Firm attorneys Tom West and Cindy Monaco will be presenting on the need for changes to model form oil and gas leases at the 3rd Law of Shale Plays Conference, to take place at the Hilton Fort Worth Hotel in Fort Worth, Texas on June 6-7, 2012.  Their presentation, Do Conventional Leases Work for Unconventional Plays in Unconventional Times?, discusses the areas where the standard oil and gas lease forms need to be revised to deal with the new realities of shale play operations.  The presentation will examine the special problems caused by horizontal drilling, governmental moratoria and other realities that should be addressed in the oil and gas lease. 

Move That Soil! Third Department Affirms: No Standing for Environmental Organization to Challenge DEC Permit

Yvonne E. Hennessey

On behalf of Casella Waste Services of Ontario, LLC (“Casella”), The West Firm secures a favorable result from the Appellate Division, Third Department on standing.  Finger Lakes Zero Waste Coalition, Inc. (“FLZWC”), a not-for-profit organization, challenged a DEC permit modification granted to Casella for its proposed 9.9 acre soil borrow area at the Ontario County Landfill.  FLZWC alleged that the DEC abused its discretion by approving the permit modification based on allegedly inflated background noise levels.  FLZWC based its standing on a member who lived approximately 4,000 feet from the soil borrow area.  The lower court found that FLZWC lacked standing because it provided insufficient proof that its member suffered direct harm as a result of the permitted soil borrow area, which had been operational for months prior to FLZWC’s lawsuit.  The Appellate Division affirmed, confirming that the distance of 4,000 feet is insufficient to presume that FLZWC’s member would be negatively harmed by the soil borrow area.  It also agreed with the lower court that the claims of actual injury by FLZWC’s member were too general and thus, insufficient to demonstrate an injury different in kind from the public at large.  As such, the Appellate Division held that neither its member nor FLZWC had standing to challenge the DEC permit modification.

Click here to read the Third Department Decision

Further Legislative History Uncovered Supporting Broad Preemption; Local Oil and Gas Preemption Cases Appealed

Thomas S. West

The West Firm announced today that it has filed the necessary papers to take an appeal from the Dryden decision, which upheld the Town of Dryden’s ban on natural gas drilling. At the same time, the Firm announced that it has made a motion in the Middlefield case to renew consideration of the decision rendered by Judge Cerio, which reached a similar conclusion.  In the Middlefield case, Judge Cerio noted the absence of any clear indication in the legislative history to the 1981 amendments to the Environmental Conservation Law to support a finding of broad preemption.  Subsequent to receipt of his decision, The West Firm combed the state archives based upon the tip from a retired DEC employee, which indicated that there may be archived documents shedding light on the legislative history of the supersedure provision. That effort located the original memorandum in support of the supersedure provision, a copy of which is attached. That memorandum confirms the Legislature’s intent to preempt municipalities from banning oil and gas exploration and development in New York State as the State’s comprehensive regulation of the industry would address local concerns, including local land use concerns. A notice of appeal has been transmitted today to appeal the adverse Middlefield decision.  The Firm anticipates that both cases will be consolidated on appeal and heard before the Appellate Division, Third Department, next fall.

The West Firm is lead counsel in the Dryden case and serves as co-counsel with Levine Gouldin & Thompson, LLP in the Middlefield case.

Governor's Program Bill 1981 Memorandum

Middlefield's Motion to Renew Papers

Middlefield's Notice of Appeal

Dryden's Notice of Appeal

The Boat That Sailed From New York To Ohio

Thomas S. West

Have you ever wondered the size of the economic boat in New York State is missing as it delays with the development of its clean burning, indigenous natural gas resources. Check out what this recent study predicts for Ohio by the end of 2014: view here.  The study predicts the following economic benefits:

•  65,000 jobs;
• A $4.86 billion dollar contribution to Ohio's economy;
• And, $3.3 billion dollars of labor income at an average of $50,225 per job.

Tom West Discusses Recent Hydrofracking Lawsuits with YNN

Thomas S. West

Tom discusses the recent court decisions in Dryden and Middlefield and provides context for the impact these decisions may have on leasing and the development of our indigenous natural gas resources.

To view the discussion with Capital Tonight YNN's Nick Reisman click here.

The Ithaca Conspiracy

 Thomas S. West

Has anyone wondered why there is a concerted effort against hydraulic fracturing in New York State even though it is the cleanest burning fossil fuel that offers New York and our country a unique opportunity for energy independence and economic prosperity? Jon Entine has figured it out in his article that identifies how the Park Foundation has been stimulus for this conspiracy.  Also, Jon Entine in his article in the New York Post adds a new wrinkle to the story....the fact that the Park Foundation actually sought out Howarth to write his anti-fracking article, knowing he and his wife were anti-fracking activists.  Links to the full article and the New York Post article are set forth below.

 Click here for the New York Post article.  Click here for Jon Entine’s article.

All of us believe in renewable energy sources, but renewable energy is not ready to sustain our energy appetite in this country.  And, renewable energy does not work without a clean burning alternative like natural gas to serve as a companion source of energy when the wind isn't blowing and the sun isn't shining. Of course, the largest consumer of energy is New York City, which still has over 10,000 major apartment complexes that burn #4 and #6 fuel oil.  In combination, these sources produce emissions that are worse than the emissions from all of the vehicles in New York City. Does anybody else think that New York City would benefit from more clean burning, indigenous natural gas?

The Park Foundation and its compatriots should get out of the way of natural gas development in New York State and focus their efforts on making renewable energy a more cost-effective alternative.

Recent Poll Released on Public Preceptions of Shale

Thomas S. West

Americans are beginning to realize the benefits of natural gas to our energy independence, the environment and the economy. As one of the largest consumers of energy New York State needs to open it borders to natural gas production to promote the development of this clean burning, indigenous resource consistent with long-standing statutory policies in New York State.

Click here to view article.

Attorney Tom West Talks Oil and Gas Leases with YNN's Liz Benjamin

Naomi A. Storch

Tom West sat down with YNN’s Liz Benjamin to discuss the anti-drilling industry’s latest distortion of reality regarding oil and gas leases, suggesting that mineral rights leasing should include securities-type risk disclosures. In the interview, Tom discusses the long history of mineral right leasing and the folly of suggesting that the same level of disclosure that is made for securities is appropriate for simple leasing transactions made in the context of a very public three-year environmental review process. Tom also explains how New York’s long track record of safe and successful drilling, longstanding well casing requirements, and simple geology would preclude the issues like those alleged to have occurred in Wyoming or Dimock from taking place in New York.

Click here for the interview.

Supreme Court Rejects Challenge to DEC's Endangered Species Regulations

Naomi A. Storch

The Albany County Supreme Court (Ceresia, J., Dec. 1, 2011) recently issued an opinion rejecting a rulemaking challenge to regulations adopted by the New York State Department of Environmental Conservation (“DEC”) under the New York State Endangered Species Act (the “Part 182 Regulations”). The Part 182 Regulations created an “incidental take permit” program regulating the potential effects of land use on threatened and endangered species. The Association for a Better Long Island, Inc., the Town of Riverhead, an individual landowner, as well as related entities, sued to overturn the Part 182 Regulations. The challengers alleged that the Part 182 Regulations were invalid because, among other reasons, DEC had failed to obtain approval from the State Environmental Board; exceeded the powers delegated to the agency by the Legislature; and violated the State Environmental Quality Review Act. The Court granted DEC’s motion to dismiss the lawsuit on the ground that the issues raised were not ripe for judicial review (not justiciable), and that the challengers did not have standing to sue. Specifically, the Court held that no “actual or concrete injury” had been presented because none of the challengers had applied for an “incidental take permit.” The fact that the challengers “may be required, in the future, to undergo the DEC Part 182 review process [was] insufficient to constitute an actual or concrete injury.” The Court further held that the challengers lacked standing because the regulations had statewide applicability, and because he challengers had not applied for a permit or been cited or fined under the Part 182 Regulations. As such, they had “not demonstrated that they have suffered any actual concrete injury different in kind and nature from that experienced by the public at large.”

Click here to view a copy of the decision.

Supreme Court Hears Oral Argument In Anschutz v. Town of Dryden Lawsuit

The Parties meet today at 10:30am for Oral Argument in Tompkins County Supreme Court, Ithaca, New York.

Click here for Petitioner-Plaintiff's Initial Pleadings

Click here for Respondents-Defendant's Response Papers

Click here for Petitioner-Plaintiff's Reply Papers

Click here for Documents Relevant to Proposed Amici and Filings