Lawyers for parties challenging local gas drilling bans enacted in two upstate towns filed briefs on May 31, 2013 asking the New York Court of Appeals to review recent intermediate appellate court decisions. Permission to review the decisions is required from the Court of Appeals since the intermediate court unanimously upheld the right of municipalities to ban drilling via local laws and zoning ordinances. In 2012, the Court of Appeals granted 6.4 percent of requests for permission to appeal, and 7.4 percent of such requests in 2011.
New York Governor Andrew Cuomo recently stated that he would make a decision on whether to lift the state moratorium on hydraulic fracturing before the 2014 election. Cuomo said that the results of a review of potential health effects from hydraulic fracturing by the state health commissioner, Dr. Nivah Shah, should be ready within several weeks. “I expected it to be concluded already,” Cuomo said. “It’s not in the distant future. But it’s not done yet.”
On May 20, 2013, the Town of Canandaigua, New York, adopted a local law to extend by nine months a moratorium on all natural gas exploration and extraction activities within the town. The new local law extends the initial 18-month moratorium passed by the Town Board, which was scheduled to expire on June 22, 2013, until March 22, 2014. The Town Board indicated that the nine-month extension will allow for the development of a local law to permanently ban high volume hydraulic fracturing activities within the town.
According to recent press reports, Millennium Pipeline Company, L.L.C., plans to submit an application to the Federal Energy Regulatory Commission to build a new 60-mile natural gas pipeline in New York to transport gas from the Marcellus Shale. The new pipeline, which would be known as the Upstate Pipeline, would connect with an existing gas transmission line near Cortland, New York, and terminate at another existing gas transmission line near Syracuse, New York.
An energy company’s proposal to expand its use caverns left behind from a century of salt mining in New York’s Finger Lakes Region for the storage of natural gas has drawn the ire of several community members that oppose the plans. The company would expand its use of depleted salt caverns in the vicinity of Seneca Lake, one of several narrow lakes in west-central Upstate New York, for the storage of liquid propane and natural gas.
For more than a century, companies have been mining salt beside Seneca Lake by drilling approximately 2,000 feet into a salt formation and injecting water to dissolve the salt. Previous owners used the remaining Seneca Lake caverns to store natural gas for decades. Opponents of the proposal said that an accident at two proposed brine ponds may jeopardize Seneca Lake, which provides drinking water to 100,000 people. Critics of the proposal also pointed to a 2004 explosion at a Texas salt storage facility and a 2012 salt mine collapse in Louisiana.
In two decisions issued on May 2, 2013, a New York State intermediate appellate court held that the New York Oil, Gas, and Solution Mining Law (“OGSML”) does not preempt a municipality’s authority to enact a zoning ordinance to prohibit natural gas drilling within its jurisdiction. The rulings affirmed two trial court decisions which upheld local drilling bans in the upstate New York towns of Dryden and Middlefield. The intermediate appellate court concluded that, although the zoning ordinances at issue would have an “incidental effect” on the natural gas industry, such ordinances were not the type of regulatory provisions the state legislature intended to preempt in the OGSML. The attorneys for the parties challenging the zoning ordinances will reportedly seek appeals to the Court of Appeals, New York’s highest court.
New York State officials said on May 1, 2013 that there is “no timetable on a decision” to lift the state moratorium on hydraulic fracturing. The Commissioner of the New York Department of Health said that new information obtained during a recent meeting with the U.S. Environmental Protection Agency will be included in the state’s public health review of hydraulic fracturing. A February 12, 2013 press release from the New York State Department of Environmental Conservation previously indicated that the public health review would be complete “in a few weeks.”
Environmental groups recently announced that they are dropping a First Amendment lawsuit filed against the Town of Sanford, New York, because earlier this month the town repealed a September 2012 resolution that banned the public discussion of natural gas drilling during monthly board meetings. The environmental groups filed their lawsuit in U.S. District Court in February 2013, alleging that the town’s resolution amounted to a “gag order” which violated the free speech rights of the town residents. The town board established the ban because the extensive public debate over natural gas drilling during meetings was preventing the board from accomplishing its business. In repealing the ban, the town board reserved the right to limit comments of any future speaker to three minutes.
On April 10, 2013, the Oneida County Board of Legislature reportedly approved a resolution that prohibits the extraction of shale gas on property owned by the county. Oneida County is located in central New York to the east of Syracuse. The resolution provides that the ban on shale gas extraction will remain in place until further study of the potential environmental and public health impacts of hydrofracking is completed.
The Independent Oil & Gas Association of New York reportedly filed a formal complaint with New York’s Joint Commission on Public Ethics on March 26, 2013, requesting an investigation into whether the group known as “Artists Against Fracking” is violating state lobbying laws. Artists Against Fracking consists of several high-profile celebrities, including Yoko Ono and her son Sean Lennon, who are outspoken opponents of hydraulic fracturing. The complaint asserts that neither Artists Against Fracking nor the individual members are registered as lobbyists in New York, and that the group has failed to disclose its spending in opposition to hydraulic fracturing. Reported statements offered by a former New York lobbying regulator, David Grandeau, suggest that advocates who spend more than $5,000 are required to register. A spokesman for Artists Against Fracking, David Fenton, said the group and its members do not have to register as lobbyists “when they use their own money to express an opinion.”
On March 15, 2013, the Town of Avon reportedly became the third upstate New York municipality to prevail in a court challenge of a local zoning ordinance banning gas drilling. The trial court rejected the argument that New York’s Oil, Gas and Solution Mining Law preempted the town’s moratorium on gas drilling. In its decision, the court cited two previous decisions that upheld local bans in the towns of Dryden and Middlefield, which are both currently on appeal before the New York Appellate Division.
A mid-level New York State appellate court recently heard oral arguments in reviewing two trial court decisions which upheld municipal zoning laws that ban oil and gas drilling within the upstate towns of Dryden and Middlefield. The appeals focus on whether New York’s oil and gas law preempts a local government’s authority to prohibit gas drilling within its borders through zoning laws. More than 50 New York municipalities have banned gas drilling in anticipation that the state will lift its five-year moratorium on high-volume hydraulic fracturing. To date, three trial courts have rejected challenges to local ordinances that prohibit gas drilling. The Dryden and Middlefield decisions are the first to undergo appellate review, and the court is expected to issue a decision in approximately six weeks.
On March 8, 2013, the Federal Energy Regulatory Commission (FERC) issued an order authorizing Dominion Transmission, Inc.’s requests to build two new pipeline projects in New York and Pennsylvania. The two projects are the Tioga Area Expansion Project, which will include 15 miles of new 24-inch diameter pipeline in Tioga, Greene, Potter, and Clinton Counties, Pennsylvania, as well as Steuben County, New York, and the Sabinsville to Morrisville Project, which will include 3.56-miles of new 24-inch diameter pipeline and additional facilities in Tioga County, Pennsylvania. FERC’s authorization is conditioned upon Dominion placing the projects into service within two years.
The State Journal reported earlier this week that New York Health Commissioner Nirav Shah plans to make a recommendation to Governor Andrew Cuomo “in weeks” on whether the state should approve hydraulic fracturing, despite reports that the Pennsylvania-based Geisinger Health System study is years away from being completed. Governor Cuomo responded by stating, “Nobody ever said that we were waiting for the studies to be finished … The Department of Health was going to be looking at those studies and see if there was anything constructive in those studies.” Cuomo also indicated that the recent legislative effort to pass a two-year moratorium extension will likely fail.
The New York State Assembly recently passed legislation to extend the moratorium on high-volume hydraulic fracturing until May 2015, but the measure faces an uncertain future in the state Senate. Supporters of the moratorium, which has been in place since 2008, claim that more time is needed to study the impacts of hydraulic fracturing.
New York missed the February 2013 deadline to release an environmental impact report, which would have provided guidelines for drilling regulations. However, New York Department of Environmental Conservation (DEC) Commissioner Joseph Martens reportedly stated that DEC would issue permits before drafting regulations if the New York State Department of Health deemed hydraulic fracturing to be safe.