Middlefield or Never Never Land?
Recent events have many asking what about Middlefield? The release of the decision upholding the Town’s zoning law banning natural gas development certainly sent the anti-natural gas contingency into nirvana after the Dryden decision went their way earlier, but does the Middlefield decision make a difference? The fact it was released late on a Friday afternoon, like everything else politicians would rather not see the light of day, suggests it won’t. Judge Cerio, the author, might better have acknowledged it was an exercise in wishful thinking. He could have given it a good fiction title such as “Return to NEVER NEVER LAND” to reflect all the things he never addressed in his thin judgement – so thin, even a laymen like me can see right through it.
The Middlefield ban is really just a package of amendments to the Town’s zoning law, enacted with the specific purpose of targeting, and prohibiting, natural gas development. It does so by classifying such development as “heavy industry.” There are two relevant definitions and one standard that effectively constitute the ban. These are as follows:
Gas, Oil, or Solution Drilling or Mining: The process of exploration and drilling through wells or subsurface excavations for oil or gas, and extraction, production, transportation, purchase, processing, and storage of oil or gas, including, but not limited to the following:
i. A new well and the surrounding well site, built and operated to produce oil or gas, including auxiliary equipment required for production (separators, dehydrators, pumping units, tank batteries, tanks, metering stations, and other related equipment;
ii. Any equipment involved in the re-working of an existing well;
iii. A water or fluid injection station(s) including associated facilities;
iv. A storage or construction staging yard associated with an oil or gas facility;
v. Gas pipes, water lines, or other gathering systems and components including but not limited to drip station, vent station, chemical injection station, valve boxes.
Heavy Industry: a use characteristically employing some of, but not limited to the following: smokestacks, tanks, distillation or reaction columns, chemical processing or storage equipment, scrubbing towers, waste-treatment or storage lagoons, reserve pits, derricks or rigs, whether temporary or permanent. Heavy industry has the potential for large-scale environmental pollution when equipment malfunction or human error occurs. Examples of heavy industry include, but are not limited to: chemical manufacturing, drilling of oil and gas wells, oil refineries, natural gas processing plants and compressor stations, petroleum and coal processing, coal mining, steel manufacturing. Generic examples of uses not included in the definition of “heavy industry” are such uses as: milk processing plants, dairy farms, garment factories, woodworking and cabinet shops, auto repair shops, wineries and breweries, warehouses, equipment repair and maintenance structures, office and communications buildings, helipads, parking lots, and parking garages and water wells serving otherwise allowed uses of the property. Agriculture and surface gravel and sand mining facilities shall not be considered heavy industry.
Prohibited Uses: Heavy industry and all oil, gas or solution mining and drilling are prohibited uses. Uses not specifically permitted under Article IV of this Local Law are prohibited, except that the Planning Board may find that a use is sufficiently similar to a permitted use as to be included within the definition of that use.
Notice the ban includes not only exploration but also transportation, processing, storage and even purchase of natural gas. Did you get that? Even the purchase (read leasing) of natural gas is prohibited by this law. The idea your town board can regulate your purchases of fuel or mineral resources ought to frighten any citizen but, apparently, this is of little concern to Middlefield residents. One can only assume they’ve been blinded by the reflection from Lake Glimmerglass and cannot see the gravity of this. What other explanation is there?
The ban also prohibits gathering lines and compressor stations. It pretends natural gas facilities, which are generally temporary accessory uses that co-exist with many other passive uses such as agriculture and recreation, are somehow akin to coal mines, oil refineries and steel manufacturing, while milk processing plants, breweries and garment factories are exempt. You can brew all the Busch Light or make all the Kraft Cheese you want in Middlefield but, by golly, if you have any ideas about putting an underground pipeline through the pasture, you can expect a fight because that’s like putting a refinery in Middlefield’s backyard and they won’t stand for it.
Through adoption of the ban, and all of its various carve-outs and gerrymandering, Middlefield is really saying they want to encourage development of boutique enterprise that employs a handful of people during a few months of the year to satisfy high-brow tastes. Adoption of the ban also shows the Town has little appetite for the type economic development that would provide opportunity for all and potentially change the Town’s character by bringing prosperity to small businesses, farmers and landowners. This is what natural gas development is all about and what it would provide if allowed in Middlefield. It seems Middlefield’s leadership is only focused on outcomes at the moment. For them, the law, and what can be reasonably achieved under it, appears to be irrelevant.
Judge Cerio, it seems, appears to be of the same mindset. His decision never addresses the key questions one would think are fundamental to arriving at a reasoned decision that balances the interests of the State of New York and the Town of Middlefield. Consider Judge Cerio’s NEVER NEVER LAND. He:
- NEVER makes an attempt to ascertain whether there is any foundation whatsoever in the Town of Middlefield’s comprehensive plan for such a broad prohibition of activities under its zoning. Section 272-a of the New York State Town Law says all “all town land use regulations must be in accordance with a comprehensive plan.” Moreover, it is no longer presumed the planning is reflected in the zoning itself, as once was the case in New York. There must be a tangible connection to the comprehensive plan. Does Middlefield have such a plan? Is there any reference to it in the environmental assessment for the zoning amendments when enacted? No one knows, as the decision doesn’t mention either. It’s as if the judge told Middlefield it “don’t need no stinkin’ badges.”
- NEVER explains how he can make a statement the oil and gas provisions of the Environmental Conservation Law (ECL) “fail to specifically address therein any land use issues which would otherwise be the subject of a local municipality’s zoning authority as an exercise of its police powers.” The ECL says the policy of the state is to prevent waste and provide for “the greater ultimate recovery of oil and gas.” It defines waste as “the locating … of any oil and gas well … in a manner … which causes or tends to cause reduction in the quality of oil and gas ultimately recoverable from a pool.” That’s not land use? Locating a well in the best location geologically to withdraw the gas is not affected by zoning it out? Come on – that tale is taller than Natty Bumppo. The legislature didn’t fail at anything – location is land use!
- NEVER reconciles his analysis of the legislative history of state oil and gas preemption law with the Town of Middlfield’s extreme position that it can prohibit any development of natural gas resources whatsoever within its borders, right down to the purchase of the resources themselves. The history cited by the judge explicitly stated the law is “based upon geologic and geophysical assessments of the subsurface existence of oil and gas fields so as to maximize utilization of these natural resources” but the Town of Middlefield’s position, taken to its logical conclusion, would mean a combination of towns constituting a gas field could negate the state policy altogether by simply prohibiting all development including, not only development, but even leasing and transportation of gas. Does this make any sense? Only if one resides in NEVER NEVER LAND.
- NEVER explains his basis for concluding “activity of the industry” is somehow distinct from the land use that is the industry, thereby leaving towns free to regulate the latter even if they are preempted from regulating the former. What is a land use if not the activity of an industry? The judge imagines a distinction that doesn’t actually exist. Likewise, he simply asserts the State’s regulations can be harmonized with local zoning without ever explaining how a gas field is developed when a town in the middle of the field just says no to leasing, pipelines, transportation and every other activity of the industry. Astoundingly, he suggests such local regulation only incidentally impacts on the activities of the industry. Doesn’t denying the right to engage in the activity of the industry represent a regulation of the industry? And, wouldn’t a reasonable person easily conclude a ban is more than an incidental impact? There’s no harmony in Judge Cerio’s reasoning. He’s out of tune by about three octaves.
- NEVER examines the major differences that separate oil and gas activity from mining. These include not only the fact one involves a permanent and principal use while the other is temporary and accessory, but also the vastly different exceptions to the preemption language for each. They also include the much different state policies under girding the sections of the ECL. There is no discussion of preventing waste, ensuring ultimate maximum recovery of natural resources or correlative rights in mining, but those are the major factors playing into state regulation of oil and gas. One would expect they deserved to be addressed in a decision that relies totally on mining law to draw its conclusions.
- NEVER distinguishes between the Frew Run and Garnett Asphalt mining cases. Judge Cerio simply moves from the one case to the other without even pausing to note the latter came only after the State of New York had amended the mining law to specifically provide for zoning of mining uses. Employing that case as if it bore any similarity to the language in the oil and gas law, stretches his interpretation beyond all reason. No reasonable person can read the current mining language and say it bears any resemblance to the oil and gas preemption language. Forget harmony; the judge is singing from an entirely different songbook at this point.
- NEVER mentions the Erie County Envirogas case, which is the one piece of case law in New York that actually addresses the oil and gas preemption issue and found for industry and against the town. Is is too much to ask that the judge at least examine that case if for no other reason than to dismiss it? Apparently, it is and that pretty much says it all, doesn’t it? If a judge can’t be bothered to discuss the one relevant case pertaining to the oil and gas preemption, than one must conclude the decision is not actually about oil and gas. Rather, it’s about politics. No wonder the decision was released late on a Friday afternoon.
So concludes our return visit to NEVER NEVER LAND. I think I’ll take my chances with the real world and the Court of Appeals. The odds look a lot better there, for all of us.