West Firm Law bLAWg

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

 

 

Town of Dryden Files Response Papers Opposing Local Preemption

Naomi A. Storch

Click here for Respondents-Defendants Papers.

EPA To Develop Natural Gas Wastewater Standards

Naomi A. Storch

EPA announced this week that it will be developing federal Effluent Standards under the Clean Water Act for discharges of wastewater from natural gas operations.  The announcement was part of EPA’s bi-annual Effluent Guidelines Plan which establishes a regulatory agenda for controlling pollution from industrial sources.  EPA intends to develop the proposed regulations by 2014.

 Click here for EPA’s press release.

 Click here for the (prepublication) Federal Register notice.

PENNSYLVANIA DEP RELEASES GUIDANCE ON AIR AGGREGATION DETERMINATIONS FOR THE OIL AND GAS INDUSTRY

The Pennsylvania Department of Environmental Protection (DEP) has issued technical guidance for “single source determinations” for oil and gas operations under its Title V, New Source Review (NSR) and Prevention of Significant Deterioration (PSD) programs.  The guidance details the analysis that DEP will apply in determining when to “aggregate” otherwise separate sources of air pollution from oil and gas operations for purposes of air permitting.  The analysis will focus on whether stationary sources are “contiguous,” relying on a quarter mile rule of thumb, and whether the sources are under “common control.”  Public comments on the technical guidance may be submitted until November 21, 2011. 

Click here to read the DEP Press Release.

Click here to read the Technical Guidance.

Another Lawsuit Challenging Local Ban on Drilling

Naomi A. Storch

Cooperstown Holstein Corporation has filed suit in Ostego County challenging a ban on drilling enacted by the Town of Middlefield.  The case was brought in New York State Supreme Court, Otsego County.

In its complaint, Cooperstown Holstein alleges that it owns land within the Town of Middlefield, as well as the rights to develop the minerals beneath that land.  It further alleges that the Town of Middlefield’s new zoning ordinance, which prohibits "[h]eavy industry and all oil, gas or solution mining and drilling," will adversely its rights if oil and gas operations cannot be conducted on its land.  Similar to the arguments made in the Town of Dryden case brought by The West Firm on behalf of Anschutz Exploration Corporation, the Middlefield case argues that the Town’s ban on drilling is preempted by section 23-0303(2) of New York's Environmental Conservation Law (ECL) as well as the comprehensive statutory and regulatory program for oil and gas drilling under the exclusive jurisdiction of the State.  

 Click here to view a copy of the Middlefield Complaint.

Anschutz Files Supreme Court Lawsuit to Overturn Town of Dryden Ban on Natural Gas Drilling

            The West Firm on behalf of the Colorado-based oil and natural gas company, Anschutz Exploration Corporation (Anschutz), filed today a lawsuit in New York Supreme Court, Tompkins County, seeking to overturn an ordinance and zoning amendment adopted by the Town of Dryden (Town), which bans all oil and gas exploration and development activities in the Town.  The basis for Anschutz’s lawsuit is that the zoning ban is preempted by New York’s Oil, Gas and Solution Mining Law, Article 23 of the New York State Environmental Conservation Law (ECL).  

ECL § 23-0303(2) expressly supersedes all local regulations relating to oil and gas exploration and development, with the exception of local roads and real property taxes.  Specifically, the ECL provides that:

The provisions of this article [ECL Article 23] 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.

The litigation papers filed on behalf of Anschutz demonstrate that this clear and unequivocal preemption language was intended to and does preempt all municipal regulation of oil and gas extraction and development, including local zoning, with narrow exceptions concerning roads and taxation.  The papers further demonstrate that any effort by the Town to regulate or prohibit oil and gas exploration and development would conflict with the extensive statutory scheme administered by the New York State Department of Environmental Conservation (DEC) relative to oil and gas development and the stated purposes of New York law to promote the development of these resources and protect the correlative rights of owners, including landowners.  The litigation papers also include an affidavit from Greg Sovas, the former Division Director of the Division of Mineral Resources at DEC, concerning DEC’s long-standing interpretation that the supersedure provision at issue in this litigation was intended to preempt all local regulation of the oil and gas industry, including local zoning, with the exception of the regulation of local roads and taxation.

Although Anschutz does not dispute the role of local governments, including the Town regarding traditional zoning, Anschutz has commenced this litigation to protect its substantial lease holdings in the Town.  Anschutz and The West Firm look forward to having the Supreme Court resolve this dispute to provide Anschutz and the Town with guidance concerning the Town’s role relative to the extensive leases held by Anschutz within the Town.

Click here to see a copy of the Anschutz lawsuit.