Leave for appeal has been granted for the New York high court to hear the appeal of the plaintiffs in the Dryden and Middlefield Home Rule cases. By agreeing to hear the case, the Supremes have signaled that this matter, which has been thoroughly adjudicated at four trial courts and one appellate court, has become an increasingly political matter, upon which they want the final say.
The legal issues have already been scrutinized in considerable detail by 5 courts. Eight (8) New York justices have decided in favor of Home Rule. Four (4) trial courts – Middlefield, Avon, Binghamton and Dryden – and the unanimous opinion of the four appellate judges. So, in order to bring final closure to the matter, the state’s high court is going to hear the case. If all goes according to a normal schedule, the Supremes will hear the oral arguments next May and render a decision by mid summer.
Should be interesting in that one of the plaintiffs, Norse Energy, a stand-in Rent-a-Plaintiff for the original plaintiff against Dryden, is bankrupt and will probably not even exist. And the lead lawyer, Tom West, is Chesapeake’s Albany lobbyist. And Chesapeake has effectively left the state.
If your town or group has not signed on to an brief on behalf of Home Rule – get busy. It’s finally time to take Home Rule to the Supremes. New York deserves the Home Rule protections that (almost) every other state enjoys.
As proposed by the DEC, there are almost no protections for surface uses – the only named protections are for “dwellings” and a “places of assembly” – none for offices, warehouses, hotels, hospitals, barns, stores, etc. And no setbacks anywhere for shale gas infrastructure – compressors, pipelines, or processing plants. The only responsible thing for a town to do is to exercise its Home Rule rights and protect its surface uses, citizens and water supplies.
“New York’s top court will hear arguments in a pair of cases that challenge whether towns, cities and villages can ban natural-gas drilling within their borders, the court announced Thursday.
The state Court of Appeals agreed to take on cases against the towns of Dryden, Tompkins County, and Middlefield, Otsego County, despite unanimous rulings upholding those towns’ drilling ban by a mid-level appeals court earlier this year.
“I think it’s a good sign,” said Tom West, an Albany-based attorney representing Norse Energy, the plaintiff in the suit against Dryden. “It doesn’t matter how many judges ruled against us.”
Tell that to the 8 justices that ruled against West & Co.
Both Dryden and Middlefield had passed zoning laws that officially prohibited gas drilling and hydraulic fracturing, the much-debated practice used to help extract gas from formations like the Marcellus Shale. In both cases, state Supreme Court and Appellate Division judges sided with the towns, ruling they were within their rights to keep the industry out.
West and Broome County-based attorney Scott Kurkoski, who represents a Middlefield landowner who sued the town, argued that the state’s Environmental Conservation Law gives all regulatory authority to the state when it comes to oil-and-gas mining. The municipal bans, they argued, violated that law.
When the Appellate Division rules unanimously, as it did in these matters, the top court has to grant a motion allowing for the case to be heard at the next level.
Meanwhile, large-scale fracking remains off limits in all of New York as Gov. Andrew Cuomo’s administration continues to weigh whether to allow it. More than 100 municipalities across the state have moved to prohibit fracking—either temporarily or permanently—ahead of Cuomo’s decision.”
Note that both the Dryden and Middlefield ban were passed while there was a de facto state ban on shale gas drilling permits. So even if the plaintiffs had won, they still would not have been able to obtain a drilling permit – to this day.
David Slottje’s summary: