In an important step in the process in the attempt to right the wrong perpetuated by the Appellant Division, Third Department, the New York Court of Appeals announced today that it has granted leave to appeal in both the Dryden and Middlefield cases. In two decisions rendered in early May of this year, the intermediate appellate court ruled that New York municipalities have the authority to ban oil and gas development in New York State. There was no right to appeal to the New York Court of Appeals. Consequently, leave applications were made that were supported by a number of amicus parties.
In granting leave to appeal in both of these cases, it sends a strong signal that the legal issues will get a fresh look by New York's highest court. Typically, the New York Court of Appeals only grants leave applications in approximately 6% of the requests that are made to it and 54% of the cases where leave is granted result in a reversal. Although these statistics cannot be used to predict the outcome of the case before the New York Court of Appeals, it is a sign that this important issue of law will be reviewed de novo. The West Firm has always been confident that New York law preempts municipalities from enacting these types of bans as there is no way to square a total ban on oil and gas development with the stated policies of the Oil and Gas Law in New York State to promote the greater recovery of the resource, prevent waste and protect the correlative rights of the landowners to have the resource developed for their benefit.
These appeals will be perfected this fall and we anticipate a decision from the New York Court of Appeals in the first half of next year.
On September 24th, Tom West from the West Firm debated Deborah Goldberg from Earth Justice concerning home rule issues at a forum sponsored by Albany Law School. Tom's presentation can be found at the following link: