Marcellus Shale

Vestal Knows Marcellus Natural Gas Bans Are Illegal

Does a town board or local municipality have the right to temporarily or permanently prohibit gas development in New York State? The answer is unquestionably no. Read Michael P. Joy’s excellent dissertation, Here’s a Novel Idea – Follow the Law, for a detailed explanation why.  We also offered our own analysis as well. Now, if the issue is clearly defined by New York State’s preemption of natural gas and oil development (specifically Article 23 ECL), why are we still discussing it here? Well, because a couple of lawyers from the Park Foundation funded Community Environmental Defense Council (CEDC), with little  zoning experience, roam New York’s quiet countryside free of responsibility for what they produce.  These special-interest attorneys appear to be misleading towns on the subject of local control by employing meaningless guarantees and the term “pro bono”.

CEDC Invades Vestal in the Hunt for a Meaningful Trophy Town

The most recent stop for Attorney David Slottje of  CEDC was the Town of Vestal, NY.  He has been imploring the Town to follow the lead of its neighbor, the City of Binghamton.  Last December Binghamton passed a controversial local ban under  Slottje’s guidance.  Of course, the ban is pointless as the proposed SGEIS regulations would prevent any natural gas development in the city regardless.  Also, its passage was supported by five votes from lame-duck politicians looking to stir the pot one last time before leaving office. This ban will cost the city a significant amount of tax revenue and business growth as natural gas companies choose to do business elsewhere.

A little research also reveals that, without Binghamton, almost all of Slottje’s successes have come on the fringe areas of the Marcellus Shale region or outside it altogether. Therefore, co-opting a municipality like Vestal would be a real coup for the anti-gas community and would lift CEDC’s credibility. However, unlike some of the towns blindly following CEDC, Vestal did the right thing and sought out different opinions.

Needless to say, Vestal’s  diligence is paying off.   A presentation by Robert H. Wedlake, Esq., attorney for the Vestal Gas Coalition, provided below lays this out in pretty clear terms.  Here Wedlake evaluates many of the problems with Slottje’s proposed bans.  These include the CEDC’s representations that:

  1. States do not preempt complete bans on natural gas, and
  2. The New York State Court of appeals, in cases related to natural gas, has supported  natural gas development bans through zoning. Both of these assertions are demonstrably incorrect and should be examined carefully by any town considering CEDC’s advice.

Why the CEDC Proposed Ban/Moratorium is Unlawful

  • New York Sate constitution does not give towns authority to overrule or preempt laws reserved by the state. Article 23 of the Environmental Conservation Law (ECL) specifically reserves that the State is the authority over natural gas development.
  • Towns are only allowed to pass laws where the state explicitly says so. Section 23-0301 of the ECL states it is the policy of the state is to “ regulate the development, production, and utilization” of natural gas, Furthermore, this section explicitly decrees state policy is to “authorize and to provide for the operation and development of oil and gas properties.” Nowhere in this section, does it say anything about local towns, municipalities, cities, or even counties for that matter.
  • Bans are a clear violation of correlative rights. The state grants each landowner the right to develop natural gas (or oil) resting underneath their property. Additionally, the state protects landowners from operators and third parties forcefully taking these same resources. Local bans impede these particular correlative rights granted and protected by the state.
  • Incorrect interpretation of mining law section 23-2703(2)(b) of the ECL. The CEDC’s assumptions are premised on New York State law treating natural gas and mining law as if the same.  Again, this couldn’t be further from the truth. If this was the case, why would New York state reserve two different sections in the ECL? Second, mining, strip-mining and sand and gravel mining are all intense processes. They require years of processing that consume a significant amount of land for long periods of time. Natural gas development is completely different as deployment is completed in a matter of months and total impact on the environment is typically reduced to two acres or less.
  • State courts have defined what local authorities are. A precedent is undoubtedly set in the case of Matter of Envirogas, Inc. v. Town of Kiantone, (112 Misc.2d 432, aff’d 89 A.D.2d 1056, lv. den. 58 N.Y.2d 602) where the court held the following:

The mere fact that a State regulates a certain area of business does not automatically pre-empt all local legislation which applies to that enterprise … but where a State law expressly states that its purpose is to supersede all local ordinances then the local government is precluded from legislating on the same subject unless it has received clear and explicit authority to the contrary.

If you reference ECL section 23 once again, the state specifically says it is in the “public interest to regulate the development, production and utilization of natural resources of oil and gas in this state…”

With so many counter points to the CEDC’s proposed bans and moratoriums, towns should be seriously considering whether the risks of enacting such legislation outweigh the benefits of taking action where none is needed.  The fact the Community Environmental Defense Council  is not willing to defend these bans should solidify this act.

Next, if the issue of local banning will likely go to the Court of Appeals.  If it is ultimately found to be unlawful local municipalities will be responsible, not the lawyers. Furthermore, if these local bans are in place, and leases expire, grounds for a taking lawsuit are established.  That is to say a town might be liable to landowners, or the industry, for lost payments or investments since the right to develop one’s property will have been stripped. Thinking logically, especially since natural gas development is still on hold, It seems the best action a town can take right is no action at all. Let New York State continue to handle the regulation of natural gas, as it has for decades.

Interview with Robert Wedlak, Esq.

Following Monday’s presentation, Jim Willis of Marcellus Drilling News and EID Marcellus special correspondent, connected with Robert for a one on one interview. Please enjoy the following podacast.


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