A Review of New York Natural Gas Moratoria and the Slottje Road Show
The actors in Park Foundation funded Slottje Road Show claim several victories over the last year but they are pyrrhic victories, with almost none in towns having any realistic prospects for development and one gigantic loss in the City of Binghamton where that City’s moratorium was dismissed by a Judge on the Broome County Supreme Court due to numerous errors in its legal reasoning and foundations.
A year-end review is a great time to gain perspective, especially regarding the efforts of some to enact natural gas moratoria throughout Upstate New York. The majority of my past year with Energy In Depth was spent working in New York State, where I reside, following the actions of David and Helen Slottje and documenting the depth of natural gas support despite the opposition ginned up by the Park Foundation.
The Slottje’s have been in the forefront of efforts to enact bans and moratoria on natural gas development, but a review of their “successes” indicates nearly all are located either well outside or on the fringe of the expected development area for the Marcellus Shale. Despite this, David Slottje proudly states he has helped over a hundred towns, cities, or villages pass moratoriums in recent years. While this may sound impressive, getting many of these communities to ban natural gas development is about as meaningful as getting them to ban orange groves. Consider, too, the fact the Joint Landowners Coalition promoted a pro-gas resolution, presented it to towns actually located over the Marcellus Shale, and had over 45 municipalities approve the resolution in just three months.
Let’s take a look at the major ban/moratoria happenings this past year.
The most memorable moratorium, though it went by another name intended to skirt moratorium and zoning rules, was enacted by the City of Binghamton, New York, Broome County. It was actually enacted last year, but the more important action took place this year. Mayor Ryan led the effort to get the moratorium enacted by a lame-duck city council. The City was challenged with a lawsuit which David Slottje helped defend.
This was, in fact, the first lawsuit where Slottje actually defended his own work after assuring his clients his strategy of imposing moratoriums before DEC started issuing permits was a “no brainer.” The City took his advice and lost the case as the court declared the moratorium illegal. Attorney Rob Wedlake, who advises the Vestal Gas Coalition and represented landowners, won the case. Here’s what the judge determined:
For the enactment of the moratorium to be upheld, the municipality must show that it’s actions were:
1. in response to a dire necessity;
2. reasonably calculated to alleviate or prevent a crisis condition; and
3. that the municipality is presently taking steps to rectify the problem.
(See, Matter of Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 512, (1974) “… a municipality may not invoke its police powers solely as a pretext to assuage strident community opposition [it must meet the three requirements set forth above] … When the general police power is invoked under such circumstances it must be considered an emergency measure and is circumscribed by the exigencies of that emergency,” see also, Charles v. Diamond, 41 N.Y.2d318 (1977); and Land Use Moratoria, pg. 3 ).
There can be no showing of dire need since the New York State Department of Environmental Conservation has not yet published the new regulations that are required before any natural gas exploration or drilling can occur in this state. Since there are no regulations, no permits are being granted. Second, since the DEC is not yet issuing permits, there is also no crisis nor a crisis condition that could possibly be shown by the City at this time.
This lawsuit will likely be appealed, but the current decision negates the entire moratorium strategy which should make any community considering one think twice before doing so.
Middlefield, Dryden and Now Avon:
The Towns of Middlefield (Otsego County) and Dryden (Tompkins County) have enacted bans held up in their respective county courts. They are now under appeal and we are waiting to hear more in the coming year, but expect the appeals courts to take a less political and more legal approach to deciding them.
Meanwhile, another very strong challenge of a moratorium is underway in Livingston County, where the Town of Avon’s actions in this regard are being challenged by Lenape Resources. This challenge builds not only on New York’s oil and gas law, but also its broader pre-emption law. It incorporates, too, the implications of the EnviroGas zoning decision, which is the single piece of New York case law directly dealing with the oil and gas pre-emption statute, a case the county court, incredibly, ignored in the Middlefield decision.
The Village of Oxford (Chenango County) has been on the radar for some time now because they are the only community in Chenango County seriously contemplating a moratorium. Slottje visited Oxford late in the year and had nearly convinced the Village Board to enact a moratorium. The Village Board, chaired by the Mayor (which also includes the Mayor’s son-in-law) had been taking recommendations from its planning board, which is chaired by the Mayor’s wife. She has been an outspoken moratorium advocate.
The planning board heard both sides of the natural gas argument several times, including detailed legal presentations from Slottje and Wedlake. Keep in mind Wedlake won the City of Binghamton lawsuit. The village board has been told, in no uncertain terms, a lawsuit from the people affected will follow any moratorium enacted in the face of the Binghamton decision. Potentially affected landowners have even offered to work with the Board to craft a law that establishes model regulations on aspects of natural gas development communities can legally regulate, while welcoming the development.
The village board, with legal action promised, decided to table its vote on the moratorium and go back to the drawing board. Strangely, though, they are consulting with Slottje who had been, for all practical purposes, advising them to adopt the failed Binghamton strategy that was overturned.
The board seems to have merely changed tactics and not its overall strategy of trying to prohibit natural gas development. It now plans to employ a zoning amendment rather than a moratorium. We still have no idea where it will end, but we will certainly keep you updated. It’s amazing to watch the Slottje Road Show in action. It tells you a lot about the motivations of those advocating for moratoria in opposition to natural gas. They know no reason, know no law, and hear only what they want to hear.
When the Slottje’s visited Sidney, New York (Delaware County), David and Helen tried to convince the board a moratorium was needed. The Delaware County Planning Board identified some serious problems with the proposal, however, and a supermajority of the Board was not available to overturn the county’s decision.
Importantly, there was also a public hearing in Sidney to discuss the moratorium and the public certainly spoke, which helped in ensuring the town didn’t achieve the supermajority required to enact it. The workers’ union at Amphenol, the biggest employer in town, turned out in strong support of natural gas development and completely against the moratorium. This effort by the Slottje’s ultimately failed.
Slottje also tried to convince North Norwich, Chenango County, to enact a moratorium. His efforts there included an extensive presentation that attacked Energy In Depth for employing words used by DEC. That too failed and North Norwich passed on the suggested moratorium.
Pittsfield, New York (Otsego County) was also visited. David gave the same as he did in North Norwich. The town board invited a few natural gas supporters to speak at their next meeting and, by the end of it, had decided not to act on the moratorium. Instead, they tabled it and created a committee to look into the matter futher.
Smithville, New York, also in Chenango County, was another town Slottje approached. The town board, however, allowed John Payne to speak on natural gas development. Payne discussed all the advantages his business has gained with respect to natural gas development in Pennsylvania. This town board has also not yet enacted a moratorium.
Summarizing, there was a whole lot happening on moratoria enactment in New York in 2012. When one looks back over the year, the Slottje’s efforts is beginning to look a lot like a replay of Night of the Lepus. You can only show that stuff so many times before reality intrudes and interest wanes.
Fortunately, many communities have wisely decided to wait and see what the Department of Environmental Conservation does before they enact a moratorium or ban.