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April 23, 2014

Drilling appeal attracts lots of 'friends of court' briefs

Ommegang one of many to file 'amici briefs'

By Joe Mahoney The Daily Star
The Daily Star

---- — Both sides of the natural gas drilling debate are lining up to become party to a potentially precedent-setting case that will determine whether municipal government has the authority to ban hydrofracking, as scores of towns throughout the state have done over the past three years.

A group of 26 companies and organizations, including Brewery Ommegang in Middlefield and the Northeast Organic Farming Association of New York, are asking the state Court of Appeals to grant them “friend of the court” status and have their position argued in support of the home rule authority of towns.

The interested parties want to step into the twin pending cases — involving challenges to drilling bans enacted in 2011 by Middlefield and the Tompkins County town of Dryden — that are scheduled to be heard by New York’s highest court on June 3.

The trail-blazing Middlefield and Dryden bans have been repeated scores of times by towns throughout upstate New York, although pro-drilling forces have largely thwarted such proposals in Chenango County.

The challenge to the Middlefield ban was brought by Cooperstown Holstein Corp. of Middlefield, a dairy farm operated by Jennifer Huntington. The Dryden ban is being challenged by Norse Energy. Groups seeking friend of the court status on that side of the divide include the New York Farm Bureau, the Independent Oil and Gas Association of New York and the Joint Landowners Coalition of New York, said Scott Kurkoski, a lawyer for the latter group.

Those challenging the bans argue that the drilling prohibitions went beyond the towns’ legal authority. They also maintain that only the state Department of Environmental Conservation is empowered to regulate drilling, although neither the state agency nor the Cuomo administration which controls it have sought to become involved in the dispute.

“It’s another example of how our governor is failing to lead on the issue of energy,” said Kurkoski.

Kurkoski noted the New York experience differs markedly from how the issue is playing out in Colorado, where a Democratic governor, John Hickenlooper, has threatened to sue any local town that bans hydraulic fracturing for shale gas.

“The governor of Colorado has recognized it is crucial to pursue state interests,” said Kurkoski, who argued that the state needs to be free of “municipal interference” when it crafts statewide energy policy.

More than a year after the Cuomo administration assigned state Health Commissioner Nirav Shah to study the health impacts of fracking, no decision has been made, and Shah said earlier this month he will leave his post in May for a new job. Gov. Andrew Cuomo, the former state attorney general who is seeking to be re-elected this year, has offered no opinions on whether towns can legally zone out drilling.

Those groups and firms seeking to uphold the authority of the local drilling bans want them in place because they preserve the towns’ character and features that attracted them to open shop in the first place said John Barone, an Albany lawyer handling the friend of the court application for the 26 home rule backers.

Ommegang had obtained friend of the court status in earlier stages of the Middlefield case but a new request must be made to the Court of Appeals, Barone said.

Though the drilling debate often elicits passionate emotions on both sides, Ommegang spokesman Larry Bennett said the craft brewery with nearly 100 employees has felt no significant negative backlash for supporting Middlefield’s ban against drilling. But the company has fielded numerous comments from people who agree with its support of home rule, he added.

“For every one I’ve seen that says, ‘I’m never going to buy your beer again,’ I’ve gotten 200 saying, ‘I’m behind you,’” Bennett said.

Barone said he is virtually certain the Court of Appeals will grant the friend of the court status to those seeking to submit briefs. What is unclear, he said, is whether the seven-member court will allow oral arguments from those with “amici” status on June 3.