Attorneys for energy companies and landowners looking to advance shale development in New York State said proceedings in state appellate court last Thursday went well and they expect to hear rulings on two key cases in six to eight weeks, or by mid-May.
Meanwhile, a lower court judge in Livingston County, NY, ruled against Lenape Resources Inc. in a lawsuit against The Town of Avon for enacting a drilling ban there.
A four-judge panel at Appellate Division Third Department in Albany heard oral arguments in the case Norse Energy Corp. USA v. Town of Dryden (No. 515227), which were immediately followed by a second case, Cooperstown Holstein Corp. v. Town of Middlefield (No. 515498).
Thomas West of The West Firm PLLC represents Norse Energy Corp. ASA in the Dryden case. He said the judges were well prepared for the day’s hearings. “They seemed to understand all of the issues very well,” West told NGI. “They understood concepts like prevention of waste and protection of correlative rights, which are important to our piece of the puzzle.”
Scott Kurkoski, an attorney with the Binghamton, NY, firm Levene Gouldin & Thompson LLP, represented dairy company Cooperstown Holstein Corp. (CHC) and its owner, Jennifer Huntington, in the Middlefield case. He told NGI the case went well. “You never really know until you get your decision, but I think we were happy being able to make all of the arguments that we wanted to make this morning, responding to the court’s questions.”
In the Middlefield case, CHC filed a lawsuit against the town for a June 2011 zoning ordinance that bans oil and natural gas operations and some forms of heavy industry (see NGI, Sept. 19, 2011). An Otsego County Supreme Court judge has ruled against the dairy (see NGI, March 5, 2012).
“The court did question the total ban,” Kurkoski said. “That’s always been an issue for us. We feel strongly that no court in the country has ever authorized a total zoning ban. And even though some states authorize some limited zoning, they never will allow a total zoning ban. And that’s what we’re doing here in Middlefield. They spent quite a bit of time on that issue, and you could see that the court was concerned about that.”
Anschutz Exploration Corp. (AEC) filed a lawsuit against Dryden in 2011 after the town passed an ordinance and a zoning requirement, similar to Middlefield’s, that prohibited all oil and natural gas development activities (see NGI, Sept. 26, 2011). But a Tompkins County judge disagreed with AEC’s argument that Dryden violated the Oil, Gas and Solution Mining Law and ruled against the company in February 2012 (see NGI, Feb. 27, 2012). Norse replaced AEC as lead plaintiff in the Dryden case last fall (see NGI, Oct 8, 2012).
Kurkoski and West agreed that a decision on both cases would probably be forthcoming in about six to eight weeks, or by early to mid-May, with West adding that if the four-judge panel were to deadlock, they would bring in a fifth judge and call for new oral arguments. They also agreed that should the municipalities and their environmental allies lose, the cases would surely be appealed to the top court in the state, the Court of Appeals.
Earlier this month, Acting Livingston County Supreme Court Judge Robert Wiggins cited the lower court rulings in the Dryden and Middlefield cases, and he used them as the basis to issue a ruling against Lenape. The company had sued Avon in December for enacting a local drilling ban, and and it has sued the New York Department of Environmental Conservation (DEC) for failing to rein in the town over the ban (see NGI, Dec. 3, 2012).
Attorney Michael Joy with the Pittsburgh office of the law firm Reed Smith LLP, who is lead counsel for Lenape, told NGI that he didn’t anticipate Lenape would appeal. “We appreciate what the court did,” Joy said. “They provided the clarity that we asked for. We don’t agree with the decision. It’s not the decision we anticipated, but we now have certainty and understanding we didn’t have before, and that enables the company to go about its business planning.”
Â©Copyright 2013Intelligence Press Inc. All rights reserved. The preceding news reportmay not be republished or redistributed, in whole or in part, in anyform, without prior written consent of Intelligence Press, Inc.
© 2022 Natural Gas Intelligence. All rights reserved.
ISSN © 2577-9877 | ISSN © 1532-1266 |