Hydraulic Fracturing Bans Will be Defended in Court


And so it begins…..

When the opposition to natural gas was at its most vocal a few months ago the caterwauling influenced several towns in upstate New York to pass laws, mostly through local zoning laws prohibiting hydraulic fracturing for natural gas within in their districts. At the time the pressure to submit such laws was intense and many localities have either succumbed to the temptation or are actively working to do so.

In August, the town of Dryden voted on an energy development ban. They were put on notice…..

As it appears that the Dryden Town Board will be voting on a complete energy development ban on August 2, 2011, this to present DSEC’s position, to amplify Henry Kramer’s prior statement, and to put the Board on formal notice that if it passes a total energy development ban it will be engaging in knowing prospective violations of constitutional rights, federal, and state law.

If the Board enacts the proposed ordinance it may subject the Town not only to litigation costs but also to potentially hundreds of millions of dollars of taking liability, which would ultimately have to be borne by the taxpayers.  The Board should not take lightly the risk of such potential liability.

Whether or not the Board believes it may somehow legally prevail, the Board should weigh the cost to benefit ratio of adopting this ban.  Even assuming, for argument only, that the possibility of success were 50-50, can the Board risk the chance of a nine figure liability?  Not reasonably.


In conclusion, the Town should affirmatively anticipate that federal and/or state court action against it is highly probably, if not virtually certain, on one or more of the above cited or other claims.  You cannot extinguish hundreds of millions of dollars of property values held by thousands of residents and separate mineral rights held by both in and out of state people without anticipating legal actions.  The energy industry has its own causes of action and may also sue.

Read the whole thing, including the 10 point legal takedown.

With this in mind, it now seems appropriate to say, “I told you so!”

Middlefield’s Zoning Law Pertaining to Natural Gas Development Goes to Court

For Immediate Release:                                                        September 15, 2011
A lawsuit has been filed against the Town of Middlefield in Otsego County to declare the provisions of its Zoning Law pertaining to oil and gas drilling within the Town of Middlefield to be void and in violation of New York State law. The law firm of Levene, Gouldin & Thompson, LLP has been retained to stop the town’s efforts to ban oil and gas drilling.
Jennifer Huntington and other Middlefield residents have already signed oil and gas leases. The new town zoning law will deprive them of their rights to market their minerals under their leases. Similar zoning laws are being enacted in other New York towns. All of these bans violate Environmental Conservation Law § 23-0303(2) which states that all local municipalities are preempted from passing local laws relating to the regulation of the oil and gas industries. Towns may not pass laws prohibiting oil and gas operations since the NYS Department of Environmental Conservation is exclusively charged with the obligation to regulate the oil and gas industries in New York.
The Middlefield case will establish precedent preventing towns from violating New York law.  Success in Middlefield will be a win for all landowners in New York. Donations to support the Middlefield case can be made payable to the “Middlefield Fund For Landowner Rights” and mailed to NBT Bank, 2 Commons Drive, Cooperstown, New York 13326.


Scott R. Kurkoski, Esq.

Levene, Gouldin & Thompson, LLP
450 Plaza Drive, Vestal, New York 13850
E-mail: skurkoski@binghamtonlaw.com

Michael R. Wright, Esq.

Levene, Gouldin & Thompson, LLP

450 Plaza Drive, Vestal, New York 13850
E-mail: mwright@binghamtonlaw.com

Jennifer K. Huntington

Cooperstown Holstein Corporation
188 County Highway 33W
Cooperstown, New York 13326
Phone:  (607) 547-2797

Then there is this….

Anschutz Exploration Corp. plans to file a lawsuit in state Supreme Court in Tompkins County to have the ban struck down in the town of Dryden, according to the company’s Albany-based attorney, Thomas West. He said he expected the lawsuit would be filed this week.

With the state moving toward allowing high-volume hydraulic fracturing, Dryden has been one of a handful of municipalities across the state that have altered their zoning regulations or passed legislation meant to ban the activity.
But the state Department of Environmental Conservation has said a court will likely have to decide whether those bans hold up under state law, which allows the state agency to regulate the industry.

Regardless of the outcome of this litigation the taxpayers of the Towns of Middlefield, Dryden and likely the citizens of Otsego and Tompkins county will be the ones paying for the defense of what seems to me to be, on so many levels, an indefensible position.

DSEC co-founder and attorney Henry S. Kramer said, “We alerted the Dryden Town Board of the dangers of a ban and the legal risks they were taking.  Yet, they chose to go ahead and, sadly, as a direct result of their decision, the taxpayers of the Town of Dryden will now be forced to pay taxes to defend their precipitous action.  Had they protected the Town’s finances and prudently waited, the test case would have come, as it has, in Middlefield, or elsewhere, and saved the taxpayers of Dryden thousands in legal costs a time when real wages are falling, food costs rising, and many residents are finding inflation means their paychecks buy less, even if they have a full time job.”

Kramer added, “Unfortunately the Dryden Town Board overreached and wrote a zoning regulation so sweeping in its scope that new homes to be constructed will be barred by its terms from storing natural gas or propane in tanks on their premises or installing pipe lines to hook up to existing natural gas lines.  They also claimed a right to preempt the United States Constitution by claiming that Dryden Town ordinances are superior to and override both state and federal law and authority.”

Watch out Town of Otsego. Your day in court is coming!
Cross posted at Pundit Press