Chesapeake’s lobbyist in Albany, Tom West has filed a motion with New York’s highest court, the Court of Appeals, to re-argue the Dryden Home Rule decision based on a lower court ruling in another state (Colorado).
This is beyond desperation, this is just pure political grand standing – with no basis in law, fact, or resemblance to what’s commonly agreed as reality.
The Longmont, Colorado case which West relies on, was based on a 1992 Colorado Supreme Court ruling which predates shale fracking. It can be distinguished in many ways from the Dryden decision. The case itself is from a trial court in Colorado, which has no precedent in that state, much less in any other state – such as New York, and the ruling has been stayed in Colorado pending appeal to an appellate court – in Colorado. So it is not legally binding in Colorado – where the entire issue of local control remains in legal and legislative flux,
Also, in Longmont, the town had issued a ban on fracking specifically, whereas Dryden used its land use (zoning) powers to exclude all heavy industry, which includes fracking – a crucial legal and factual distinction.
In Longmont, the ban applied to drilling underground from neighboring towns, an issue which which was not pressed by the towns in the Dryden decision because the towns were concerned with land use – ie. surface impacts under their zoning powers.
West contends that the Court of Appeals did not consider the oil and gas concepts of correlative rights or waste in its ruling:
“The New York Court of Appeals only addressed half of the case,” West said. “We are now asking them to address the rest of the case—namely, the direct conflict between a municipal ban and a statutory scheme that seeks to promote the greater ultimate recovery of the resource, prevent waste and protect the correlative rights of the mineral owners.”
Actually the court did specifically address those issues. In fact one of the key amicus briefs – by Team Slottje – addressed West’s misinterpretation of the concepts in complete detail, copy here. Simply put, those concepts apply to the relative rights shared by mineral interest owners of a common pool of oil and gas – between each other in regards to sub surface reserves – not to surface use ordinances – which govern land use in every major oil and gas state, including Texas, Oklahoma, New Mexico, Pennsylvania and California. Where the courts are familiar with the correlative rights of subterranean mineral interests, the potential wastage of such assets, and the (legitimate) need for pooling. West is trying to pretend that legal concepts that apply to underground rights apply to the surface. They do not, unless state law specifically says they do. In Dryden, the Court of Appeals determined that they did not. The only exception – where subsurface rights top surface rights – is in a “split estate” dispute, where the ownership of the surface and the subsurface rights are separate. But surface use regulations are superior to underground rights. This works out best for the vast majority of the populace, most of whom live on the surface. . .
To top it all off, the motion was apparently filed late under the court rules. So four strikes and the shale shyster is DOA on this publicity stunt.
Here’s a copy of the motion – Motion to Re-Argue Dryden Home Rule Decision. File it under “Fracking Publicity Stunt #22”
The mainstream press is dutifully covering this publicity stunt as if it were . . . a publicity stunt, starring Tom West, the Losingest Fracking Attorney in the Country. Read all about it folks.