Will the Dryden Turkey Fly?
The first rule of winning is to always say as little as possible, because a wise man knows no victory is forever and no defeat is final. Still, as Ann Landers also wisely noted, “Bragging is not an attractive trait, but let’s be honest. A man who catches a big fish doesn’t go home through an alley.” Truer words were never spoken. Last evening, a few minutes after the Dryden decision became public, and before I even got a chance to read the darned thing, I received the following message from an individual named Brian Grady, who I don’t believe I’ve ever met:
I’m sure you’ve read this already but…
I’ve been reading your paid commentary for a while and just wanted to rub this in your mercenary eyeballs.
I’m sure you’ll denounce him as an “activist judge” and come up with some nonsensical reason why he should be defrocked but you should start looking for another job.
I immediately circulated it among my associates as an example of how our opponents think, adding “it’s nice to know you have friends.” We received similar comments on some our posts on this blog and, as is too often the case, none of them would use their real names to make their points, so I trashed them. You can imagine what they said, especially the one from “Clarence Darrow,” as if the real Darrow would have hesitated to put his name in print. Brian Grady, at least, had the decency and honesty to use a real name, although his tone was far from endearing. So, I’ll direct my response to him. Perhaps we can begin a conversation.
Natural Gas Ban Scores a First Quarter Field Goal
First, Brian, let me congratulate your side on winning the first quarter. You scored a field goal in the first game of the season and got up on the board before we did. Moreover, the judge’s decision is easily read and, to a large extent, logical even if you vigorously disagree, as many do. I know nothing about him, have no reason to criticize him and do not assert this decision makes him an “activist” judge. He’s just plain wrong in my judgment and I fully expect his judgment will be overturned in the appeals process. Who knows, natural gas supporters may even in prevail in Middlefield, but it won’t matter. Either way, this case is headed to appeal. That much has been known for a long time. You can gobble, but you’re not flying yet. Some turkeys, in fact, never fly. I learned that watching WKRP in Cincinnati.
Natural Gas Ban Decision Flawed
Will the Dryden turkey fly? I don’t think so and some very capable attorneys I know don’t think so either. I’m not a lawyer but, like policemen, planners are required to know something about the law. I’ve immersed myself in zoning for a good deal of my life, having written numerous such laws for New York communities. I was, indeed, attending a zoning meeting for a client, when I got the Dryden news. When I look at this decision and hear what my lawyer friends have to say, there are few things that immediately stand out:
1. A critical flaw in the judge’s reasoning is his simultaneous reliance on two different versions of mining law in the state. One is the original version enacted before the law was amended in the 1990’s and the other is the amended law that specifically allows towns to engage in the zoning of mining uses. He uses the first to say this must mean a community can apply zoning because the wording is so similar. He then uses the second to say the community can ban natural gas development altogether, extrapolating beyond all reason to suggest two now completely different provisions say essentially the same thing. They are, in fact, wildly different at this point. See our own analysis for more explanation on this point. Also, note the mining law allows towns to “impose stricter” standards. There is no such language in the oil and gas law.
2. The judge takes no notice of the fact the legislature, when it amended the mining law to specifically allow for zoning of those activities, did not also choose to amend the oil and gas provisions. If the provisions are so similar in intent and the legislature wanted the mining language to apply to gas, why didn’t it amend both? They are both part of the Environmental Conservation Law, so that would have been the perfect time to allow zoning of oil and gas activities, would it not? The judge used such a line of reasoning by arguing the legislature could have clarified the oil and gas law to say zoning is not permitted and did not do so, but failed to consider the full implications of his reasoning. He got it exactly backwards as a result.
3. The judge blithely dismissed the vast differences in gas exploration and mining, but far more importantly, the differing state policies and legislative purposes attached to the respective laws for each. The mining law doesn’t involve correlative rights. The mining law doesn’t seek to minimize waste or enhance the ultimate recovery of resources as the oil and gas law does. The mining law doesn’t involve what is a temporary use that straddles multiple municipalities. The mining law involves uses of a far different nature and processes that take place on site for decades. The only thing similar about the two activities is that they both involve mineral resources. Beyond that, the similarities end. The land uses couldn’t be more different.
4. The judge also tried to say road issues, one of the two exceptions to the oil and gas preemption, were somehow related to oil and gas operations and processing, suggesting this was the only reason for listing this exception. However, he never addressed taxes, which is the other exception and clearly falls outside the realm of operations and destroys his argument. He proceeds to cite unrelated examples of preemption he suggests support his view, but ignores other preemption case law from the Court of Appeals that goes the opposite way. Attorney Michael Joy, for one, says preemption doctrine from the Court of Appeals is especially strong. The judge also fails to address the different types of preemption that Attorney Robert Wedlake articulated so well in Vestal the other night.
5. The Dryden decision also reflects a deep lack of knowledge regarding the nature of natural gas development, inaccurately describing the process as “hydrofracking” and interjecting a slang term into a legal document. He appears not to have understood the specific role hydraulic fracturing plays in the process and wrongly thought it was new when it had been conducted in New York for decades. He adopted the inaccurate language and false characterizations of natural gas opponents and clearly didn’t grasp the impact of his decision on conventional natural gas development, vertical well development or pipeline development. He missed it all.
Where Now? To the Court of Appeals!
Where does this leave us? Well, as noted above, we’re just beginning the second quarter of the football game with our side now getting the ball. The Middlefield case remains to be resolved and may well result in a different opinion, or may not, but we know one or more of these cases will be appealed and eventually make their way up to the Court of Appeals where things will be decided. Attorney Tom West, who handled the Dryden case for Anschutz, says he’s confident in the law and the legal positions staked out. A review of the decision and the case law suggests he’s correct – that the decision is a turkey. Will it fly? I think not and, just in case, I’m staying inside in the event my friend Brian decides to rent an airplane and start dropping copies from the skies as he is clearly eager to do. I just hope he doesn’t have a pilot’s license.