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.