Plan to drill for gas in Dallas goes down to defeat, failing to win approval of City Council; NY’s top court to rule on municipal fracking bans

Dryden supervisor: Gas industry ‘not used to not getting their way’ by Jon Campbell, August 29, 2013, Politics on the Hudson
Mary Ann Sumner, supervisor of Dryden, Tompkins County, said she’s confident the panel of judges will uphold the town’s ban, which was implemented through zoning laws. “We are confident that the Court of Appeals will affirm, as two other courts have before it, that our town has the right, enshrined in our state Constitution and upheld by the courts, to decide how land is used within our town borders,” Sumner (pictured) said in a statement. “Still, the oil and gas industry is dissatisfied and stubbornly insists on dragging out this court case. Clearly, they’re not used to not getting their way.”

The state Court of Appeals agreed to hear two cases: One challenging Dryden’s ban, the other taking on a ban in the town of Middlefield, Otsego County. Both the state Supreme Court and a mid-level appeals court ruled in favor of the towns in both cases. The Independent Oil and Gas Association said the cases will receive a “dispassionate examination” by the Court of Appeals. The cases center on whether a local ban encroaches on the state’s ability to regulate the oil-and-gas industry. “In our view, local bans on oil and gas exploration violate New York’s Environmental Conservation Law and create patchwork public policy and a level of regulatory uncertainty that discourages business development,” IOGA Executive Director Brad Gill said in a statement. “State laws were enacted with the specific purpose of overseeing natural gas extraction, in that local municipal leaders lack the resources, scientific background and regulatory expertise to do so.”

NY’s top court to rule on municipal fracking bans by Jon Campbell, August 29, 2013, The Journal News
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. It’s a matter of law and it’s a fresh look at the issue.” 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. By agreeing to hear the cases, the Court of Appeals gives them new life. … 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. [Emphasis added]

New York’s Highest Court to Hear Appeals in Fracking Cases by Chris Dolmetsch, August 29, 2013, Bloomberg News     
Fracking already is banned in more than 50 New York towns, while dozens more have moratoriums in place or are considering bans, according to Karen Edelstein, a geographic information-systems consultant in Ithaca. New York banned fracking in July 2008 so it could draw up new regulations for the drilling process. In February, Governor Andrew Cuomo abandoned the rule-making process and said he’d make his determination based on the conclusions of state Health Commissioner Nirav Shah who has been studying fracking’s effect on health. At the time, Shah said he would be done within weeks. The study, though, has dragged on for months as he’s visited state regulators in Texas, Illinois and California.

The Middlefield dairy farm, which signed two oil and gas leases in 2007 with Elexco Land Services Inc. to explore and develop natural gas resources under the property, said in a September 2011 lawsuit that Middlefield, a town of about 2,000 people 50 miles (80 kilometers) west of Albany, had no authority to enact a ban because the activity is governed by state law. Anschutz Exploration Corp., a Denver-based affiliate of billionaire Philip Anschutz’s closely held company, sued Dryden, a town of 14,000 people about 75 miles west of Middlefield, the same month. A judge in Cortland upheld Dryden’s ban in February 2012 and a judge in Wampsville ruled days later that Middlefield’s was also legal. The cases were consolidated for appeal. Norse Energy, a Lysaker, Norway-based explorer whose U.S. unit filed for bankruptcy protection in December, replaced Anschutz Exploration in the Dryden appeal. Just a week before the appeals court in Albany heard the arguments, Justice Robert B. Wiggins in Livingston County upheld a ban in Avon, a town and village of about 11,000 people 19 miles southwest of Rochester.

A federal judge in Brooklyn in September threw out a lawsuit by New York Attorney General Eric Schneiderman seeking a full environmental review of hydraulic fracturing. The judge granted a motion by the U.S. Environmental Protection Agency to dismiss the case, finding that the development plans are in the early stages and the threat of harm is speculative. Schneiderman sued the Delaware River Basin Commission, the EPA and other federal agencies in May 2011 to force a fuller assessment of the environmental impact that gas development could have on the state’s water supply. The river commission, created in 1961, is a pact among New York, Delaware, New Jersey, Pennsylvania and the federal government that is responsible for water quality in the Delaware River Basin, which supplies drinking water to the four states. Schneiderman said in the lawsuit that the commission’s proposed regulations would allow fracking at 15,000 to 18,000 gas wells without a full environmental review. If the regulations are issued, New York’s moratorium will be lifted. [Emphasis added]

Case closed on Dallas Fracking, Fracking officially shot down by Dallas City Council by Claire St. Amant and Tara Gubbins, August 28, 2013, Dallas.culturemap
After five years of heated debate over fracking, Dallas City Council members voted on August 28 to deny gas drilling permits to Trinity East Energy. The City Council vote confirmed previous actions by the City Plan Commission, which twice denied Trinity East’s application for special use permits to drill in Dallas. Trinity East needed 12 out of 15 votes — a super-majority — to overturn the commission’s denials but only garnered nine. … Although public sentiment seemed clearly against the permits, the no vote brings the potential for lawsuits — a fact that Mayor Rawlings underscored in his thoughtful comments preceding the vote, in which he likened the situation to a poker game. “I am personally opposed to urban gas drilling in Dallas,” he said. “We continue to grow, and there are too many unknowns. To that end, I will support the efforts of the City Planning Commission on new ordinances to ensure safety. … With the city officially denying fracking in parks and the flood plain, there’s the potential that Trinity East will sue, alleging the land was leased under false pretenses. For now, however, the case on fracking in Dallas is closed. [Emphasis added]

Plan to drill for gas in Dallas goes down to defeat by Rudolph Bush, August 28, 2013, Dallas News
An energy company’s request for three gas drilling permits failed to win the approval of the Dallas City Council on Wednesday. The defeat could be the death knell for natural gas drilling in a city known around the world for its ties to the petroleum industry. The permits, sought by Trinity East Energy, got just nine of the needed 12 votes. That “supermajority” of the 15-member council was required because the City Plan Commission earlier voted against approval of the permits. The vote effectively means that in return for paying the city $19 million in 2008, Trinity East got little more than an up-or-down vote on its plan to seek natural gas on city-owned land. The city got a quick infusion of cash at a time when the recession was playing havoc with the budget. It also got a nasty controversy over how the deal with Trinity East was structured and five years of bitter debate about the safety of urban gas drilling. And now, according to Mayor Mike Rawlings and others, the city probably faces a costly lawsuit from Trinity East. The threat of litigation has long loomed over the drilling debate. Drilling opponents dismissed it as hollow. But the risk to taxpayers is real, Rawlings said.

After hearing dozens of speakers for and against the permits, the mayor gave a lengthy speech of his own. He opposes drilling in Dallas, he said. There’s a place for everything, but there’s no place in this city for drilling, particularly hydraulic fracturing, or fracking, operations. He will support new city drilling regulations that are shaping up as some of the most prohibitive in the region. “Today is not about being pro or con on a theoretical issue,” he said. “We have a contract with a business. … There is a chance that by voting no we could cost the city of Dallas millions of dollars of legal and other expenses.” After the vote, Trinity East chief executive Tom Blanton wouldn’t say whether a lawsuit is next. “Oh, heavens, I don’t know. We’re so far from that,” he said.

Rawlings compared the dispute to a poker game, one in which Dallas holds the best cards. The city has done everything by the book, he said. Trinity East can’t drill economically where it wants to drill before its contract runs out in February. Therefore, according to Rawlings, the company’s stated intention to drill amounted to a bluff: Trinity East’s only hope was that an emotional reaction to fracking would lead the council to reject the permits. Then, the company might be able to cash in through a lawsuit. … Council member Philip Kingston, who opposed the permits, said his vote wasn’t based on emotion but on his conclusion that Trinity East’s request would violate city ordinances against drilling in a floodplain, among other things. … Had Trinity East been seeking the same permits in Fort Worth, a hearing before the City Council wouldn’t even be necessary, said Dallas Cothrum, a consultant for Trinity East. Fort Worth’s welcoming approach hasn’t resonated well in Dallas, though. Concerns about earthquakes, water and air pollution and noise have only intensified since Dallas first leased its land to Trinity East in 2008. [Emphasis added]

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