Marcellus Shale

Middlefield Decision Receiving Another Look

The Middlefield decision, upholding that town’s ludicrous law outlawing anything and everything connected with natural gas, got another look last week by Judge Donald Cerio as he considered Jennifer Huntington’s Motion to Renew based on new evidence.  I was there, as a supporter of Jennifer and am pleased to related what happened.  I am not naive enough to realize the judge might not be just going through the motions (pun intended) and using this as an opportunity to improve a poorly worded decision that didn’t even bother to cite the one relevant previous case decision in New York, but, still, I was encouraged.

The opposition was disorganized and Earth Justice not only didn’t show (as the judge pointed out) but, also, did not bother to even submit anything.  Meanwhile, Attorney Tom West strengthened his original arguments with powerful new documentation regarding the New York Legislature’s intent when it enacted the pre-emption statute.  Will it be enough?  It’s extraordinarily difficult to say, but at least there was a thorough discussion of pre-emption and legislative intent including a key statement made at the time by the Governor’s Office indicating “Local government’s diverse attempts to regulate oil, gas and solution mining activities serve to hamper those who seek to develop these resources and threaten the efficient development of these resources, with Statewide repercussions.”

Judge Cerio held the hearing on Jennifer Huntington’s motion on June 1, at 11 AM, in Wampsville, New York.  He was there to receive and consider new found evidence in regard to the Cooperstown Holstein Corporation vs. The Town of Middlefield case.  The judge, in his opening statement, stated he was very willing to hear any evidence that would enlighten him and allow a more just outcome.  He said he had no problem changing his mind if he had made a mistake.  Time will tell, of course, but I must say Judge Cerio seemed sincere, if nothing else.

Town of Middlefield Welcome (NOT) Sign

Tom West argued that Yvonne Hennessy, his associate, had gone to great lengths to track down archived evidence that had been stored in a separate building when the New York State Department of Environmental Conservation (DEC) had moved their offices from Wolf Road to their new, smaller,  downtown location.  He explained how, in the creation of the oil and gas law for New York, there had been three pieces of legislation that had been melded into this law.

West noted part of the evidence was a Governor’s Memorandum that very clearly indicates the atate shall supersede all ordinances and local laws, giving  jurisdiction over only property taxes and road use to the municipalities (see quote above).  He explained the significance of the former as a “carrot” that was given to the local municipalities, given the very lucrative nature of New York State’s ad valorem tax to those muncipalities.

He also elaborated on the recognition, within this memorandum, of the inability of the local governments to regulate oil and gas.  He also referenced the law, stating the DEC alone, has the jurisdiction to govern the creation of exploration and development units, including their size, shape and location!  West emphasized these laws state, very clearly, the “where” as well as the “how” regarding the manner a oil or gas well is developed, is within the sole discretion of the experts at DEC.

Attorney Myers represented the Town of Middlefield, and seemed very rattled with the day’s proceedings.  His only, and the best argument he could come up with, after asking for an extension from the May 11th date to prepare, was that there was “no excuse” why this new information should be allowed. He argued that ” in law you only get one whack at the apple” and that Ms. Hennessey should not have the opportunity to go back to find the truth!  This, of course, begs the question; is our justice system about upholding the truth, or isn’t?  The judge seemed to indicate he is interested in hearing all information that will lead to a just decision… time and a new decision will tell!



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