Recent court decisions, which one hopes will soon be further appealed, strike another blow against both property rights and rational thinking in New York State, both of which have already been in very short supply.

Well, the New York State’s Third Judicial Department has upheld the Dryden and Middlefield decisions, and our friends on the other side are doing some early crowing.  It’s a disappointing but hardly unexpected decision, as readers of this blog know from observers who commented here.

It’s not the end of the road, of course, but only a fool would think it’s good news.  It’s exceedingly bad news for a state already ranked dead last in personal and economic freedom, according to researchers from George Mason University.  And yet, one more property right may well be sacrificed at the altar of political correctness if this decision holds up on appeal to the state’s highest court.

Nonetheless, one gains hope from the sloppy, and clearly political, nature of the decisions.  There are two indicators of this that tell us most of what we need to know.

Defining Regulation Away

The first serious problem any layman like me sees appears at the bottom of page seven of the decision on the Dryden appeal, where the court attempts to define “regulation” so as to preclude certain regulations, namely those connected with land use.

Things start off just fine when the court correctly points out the oil, gas and solution mining portion of the state Environmental Conservation Law (OGSML) doesn’t define “regulation,” and then seeks to determine an appropriate interpretation.  But the court doesn’t go first to other state statutes, case law, Black’s Law Dictionary or any of the other places one would expect it might go.  Incredibly, it goes to an online dictionary, the Merriam-Webster On-line Dictionary, to conclude a regulation is “an authoritative rule dealing with details or procedure.”  Just like that wonderful State Farm commercial, the court “found it on the internet.”  I guess the Wikipedia site was down when they went Googling.

Moreover, the court doesn’t even choose the first definition offered, which properly said regulation is “the act of regulating.” Rather, the court deliberately chooses the secondary meaning where a regulation is nothing more than an implementation device for a separate law.  That’s highly convenient, isn’t it — especially if your purpose is to find a way to rationalize acceptance of the anti-gas position?  Just tell your law clerk to find a definition that fits, and away you go!

If the court had properly used the first definition of regulation, this would have logically taken it to the  definition of “regulating,” the first explanation of which is “to govern or direct according to rule.”

But that would actually require understanding the meaning of regulation, which the court so assiduously desired to avoid. Simply put, regulation is the act of governing, and the plain language of the OGSML superseding “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries” unambiguously falls into that definition, which includes land use regulations.  The court clearly chose a narrower definition to fit what it wanted to decide, not what any reasonable person would conclude.  Land use regulations are still regulations, no matter how one construes them. Isn’t the judicial branch’s job to interpret the law, not arbitrarily make it work for a desired purpose?

This also takes us to the real problem, though: trying to parse words to determine what a legislature that no longer exists meant is somewhat akin to measuring the height of a building in gallons.  There is no answer that’s not theoretically correct depending on what a “gallon” is. It could be the height of standard jug of milk, twice the height of half-gallon of ice cream, or the distance one can drive with a gallon of gasoline.  It is, in such a circumstance, whatever the interpreter wants to be, which is exactly what happened with the court’s decision, and that’s what made the decision a political one.

Something else made it political, too: the fact the one entity in New York State with the authority, experience and knowledge to offer expert opinion on what has always been meant by regulation of natural gas development in the state didn’t weigh in on the subject.  Numerous amicus curiae briefs were submitted by both business and environmental groups, but the New York State Department of Environmental Conservation (DEC), under the leadership of Joe Martens and subservient to Andrew Cuomo, was as silent as a catacomb.

Make no mistake. Upstate New York is indeed likely to be a dead zone if this decision stands.  Hell, much of it already is.

It wasn’t always that way.  The DEC used to tell communities how different the oil and gas provisions of the Environmental Conservation Law (ECL) were from the mining section, as they did with the City of Olean.  They also show no reluctance to file amicus curiae briefs in instances where state interests are involved, as they have done in the Adirondacks, for example. So, why is DEC not acting when, as the ECL stipulates, it is “in the public interest to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste; [and] to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had”?

The answer is obvious: neither Joe Martens (whom we have suggested is “the Commissioner from NRDC“), nor Andrew Cuomo nor Attorney General Eric Schneiderman are interested in protecting those interests any longer.

If they were still interested, we would have seen DEC intervene to note the greatly differing language of the two parts of the ECL, including careful explanations of the vast differences in the two industries and in the way the state regulates them as of necessity.  We would have seen the state detail its own interests in regulating locations of gas wells, which is what zoning is all about, after all.  We would have seen a distinction made between the temporary and accessory nature of natural gas development as an activity compared to the permanent principal land use that a sand and gravel or aggregate mine represents.

None of this happened, of course. Thus, the court had free rein to resort to an online dictionary and come up with a self-serving hokey interpretation, which no one who knows anything about oil and gas development or its history of regulation in New York would possibly accept.

Hiding the Worst Faults

The second revealing aspect of these decisions has to do with what is conveniently hidden: the substance of the Middlefield ban and its egregious violations of every principle of law.  The court provides a relatively detailed analysis of the Dryden case in its its decision, but in the case of Middlefield, it simply refers back to Dryden, offering nothing different or new.  This truly is remarkable, because the two laws and the decisions that prompted the appeals are quite different, and Middlefield, if sustained, would have tremendous and far-reaching implications.  Granted, the appeals were consolidated due to the similar major issues involved, but the Middlefield ban included features that cannot possibly make sense to anyone looking at them objectively.

We took a hard look at the Middlefield decision over a year ago and offered this:

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.

The Town of Middlefield, in other words, bans any transportation or purchase of natural gas — so if you have a Compressed Natural Gas (CNG) vehicle, you’d better steer clear of it, lest the natural gas police impound your vehicle and haul you off to jail.  You can’t build a pipeline either, so don’t plan on developing gas in any next door communities either, as you won’t be able to get product to the market.  And, if you’re a manufacturer who wants to locate in Middlefield and is hoping New York State Electric and Gas will someday extend their service from Oneonta or one of the other pipelines in the area to your location, just “fuhgeddaboudit” — they don’t want you unless you’re a trendy beer maker who needs special permits to discharge contaminants into the Susquehanna River.

Does anyone think it’s practical to allow one municipality to stand in the way of a pipeline serving an entire region?  No, of course n0t, and that’s precisely why the court avoided analyzing the Middlefield law or the lower court’s decision on that law.  Anything more would have forced it to address the real issues at stake – the compelling interests of the state itself – and it didn’t want to do that.

Where Will It All Go?

Will reason prevail at the Court of Appeals?  Will this appeal even get there?  No one knows, but one thing is surely clear: everything in New York is purely political.  The idea that an energy source such as natural gas can be developed on a patchwork basis subject to the ever varying whims of local politicians is farcical at best.  Unlike sand and gravel, which is found in specific locations, shale underlies whole jurisdictions. Pretending we’re going to be able to recover it on a piecemeal basis with pipelines that magically jump over and around communities will eventually meet the cold hard truth of reality.

Sooner or later, wisdom has to prevail, whether delivered by courts or legislatures.  This is what happened with wind, when the state enacted a power siting law. Something similar could, of necessity, happen with natural gas as well.  It already did many years ago, in fact, but that provision is being slowly corrupted by activist courts, so one can easily imagine it might have to be done yet again.

That is so often the problem with government, of course.  Solutions are never permanent, and the pendulum is ever swinging, but one thing that is certain is this: Americans and New Yorkers will always want affordable energy and the jobs that go along with it.  The only question is, will those jobs continue to be created in Pennsylvania, or will New York wake up to its own, self-inflicted economic plight and try to produce more of its own energy?

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