Winston Churchill said “Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing ever happened.”  That describes much of what has happened as towns throughout upstate New York have been inundated with pleas to ban natural gas development from anti-gas groups .  Some towns have surrendered to short-term political correctness, some have wisely said no and others have punted, which is exactly what happened in the Town of Caroline.

First, lets recount what happened in Caroline last month.  Anti-gas groups in the area gathered 1,146 signatures supporting a petition to ban natural gas development on a plan offered by the Community Environment Defense Council (CEDC).  The number of singatories  seemed overwhelming but, as we noted previously, the group wasn’t as large as it seemed taking into account that online signatories and secondary residents comprise a large percentage of the group.   The petition presented to Caroline urged them to accept free legal advice from this team, including the well-known Slotjje’s.

The Town of Dryden, which took this same legal advice, is waiting to see how their ban will hold up in the New York Court system.  Towns in New York State are permitted to address road and real property tax issues connected with natural gas exploration but are preempted from regulating other aspects of development which are the regulatory jurisdiction of the state.  Some have tried to maintain mining law, which allows towns to get into zoning that particular activity.  It provides a precedent for gas regulation but the gas exceptions are much narrower and only allow towns to regulate these two matters, foreclosing the ability to zone out natural gas production completely.  It doesn’t take a lawyer to grasp the difference between the two statutes.  Read for yourself:

The Oil and Gas Preemption:

“[t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”

The Mining Preemption:

“For the purposes stated herein, this title shall supersede all other state and local laws relating to the extractive mining industry; provided, however, that nothing in this title shall be construed to prevent any local government from:

a.  enacting or enforcing local laws or ordinances of general applicability, except that such local laws or ordinances shall not regulate mining and/or reclamation activities regulated by state statute, regulation, or permit; or

b.  enacting or enforcing local zoning ordinances or laws which determine permissible uses in zoning districts.

The language is plain and easily understood.  There are major differences in the exceptions provided under the two sets of preemption provisions.  One allows zoning involvement and the other (the gas statute) does not.

Context about the issue is provided by this retired corporate attorney.

But, here is Helen Slottje’s pitch:

Notice she doesn’t mention what her husband told the Town of Bethel earlier – that they are not litigation attorneys and, therefore, will not be able to defend either town if sued for taking their advice.

This month, the Town of Caroline Town Board held a meeting to act on the petition. The Board offered the public time to comment before any decisions were made.

Sadly, several anti-gas attendees threatened the board members with comments such as “with this election coming up, I would be worried about your position if I were you.” They had to be reminded to be civil.

Anti’s also argued, hypocritically, that the rest of the country should supply energy and Caroline shouldn’t contribute.

Another anti-gas individual speculated about the adverse health effects of natural gas exploration, which we have previously addressed.

There were, on the other hand, some rational comments.  Earl Colley (relation) noted “free legal advice is like a verbal contact, only as good as the paper it is written on.”   Three members of the board agreed with this statement and supported it in their statements to the public.

Three board members also agreed, there was no rush to get legal advice, start drafting a ban, and spend time working on this without knowing how such a measure may play out in court.  They argued it would be wise to hold off and see what happens with the cases being challenged before making a decision.

Board members were asked to publicly announce their positions on natural gas exploration because “as everyone knows, elections are coming up.”  Each did and at the end of the meeting the Board voted. One board member abstained, two voted to support the ban, two voted no and  no action was taken.  The Town Board will now wait and see how the lawsuits unfold.