COOPERSTOWN -- Brewery Ommegang is warning that it would have to consider relocating if the town of Middlefield's ban on gas drilling is struck down and horizontal gas drilling begins.
The ominous warning is contained in a new legal brief filed in support of Middlefield's recent zoning law.
"If its water were to be contaminated, the Brewery could be forced to move its business elsewhere," the court papers state. "Its Master Brewer and Quality Control chemist agree that even if Brewery Ommegang wished to do so, it could not remove many of the toxic chemicals commonly used in hydrofracking, should they be released into the Brewery's water supply."
Ommegang, the village of Cooperstown and four environmental groups -- Otsego 2000, the Natural Resources Defense Council, Riverkeeper and Catskill Mountainkeeper -- are asking for friend-of-the-court status so they can be in Middlefield's corner as it defends its ban from a legal challenge mounted by Cooperstown Holstein Corp.
Cooperstown Holstein has leased tracts of land to the gas industry and contends the town overstepped its authority when it prohibited heavy industry, including drilling for gas and oil. The lawsuit maintains that only the state is empowered to regulate gas drilling.
According to the legal brief filed by Earthjustice in state Supreme Court, a non-profit environmental law firm that is representing the brewery and the other would-be parties to the case, what drew Ommegang to Middlefield was the "readily available and plentiful amounts of clean water."
Ommegang spokesman Larry Bennett told The Daily Star the brewery currently employs 83 people.
He noted about 50 percent of the land that borders Ommegang's acreage is leased to drilling companies. The health-threatening chemicals that would be used in fracking fluids, he said, would pose a severe threat to the brewery's wells, which supply Ommegang with more than a million gallons of high quality water a year.
"You can't build a filtration plant that would get rid of (the toxic chemicals used in fracking)," Bennett said. He also noted that trucking water into the plant would be too expensive.
The only options for Ommegang, he said, would be "shutting down or moving."
"We're really not threatening anybody," Bennett continued. "That is just the reality of the situation. It's a worst-case scenario at this point; but as we all know, these things can happen."
An attorney representing Cooperstown Holstein, Michael Wright of Vestal, said he will be filing a legal brief arguing that the application for friend of the court status for Ommegang, the village of Cooperstown and the environmental groups be rejected.
"We just don't think it's of significant import," he said of the brief, noting the central issue in the case involves whether Middlefield exceeded its authority in regulatory matters when it banned gas drilling in June.
Deborah Goldberg, the Earthjustice attorney representing Ommegang and the other parties seeking friend of the court -- or "amicus" -- status said in her 20 years of experience as a lawyer she had never encountered a litigant who spent so much effort trying to thwart such briefs.
"The gas industry is just scorched earth (in its approach) and is going to do whatever is necessary, including trying to prevent the judge from having another perspective," Goldberg said. In the end, though, she said it will be up to the court to determine whether or not the arguments being made by Ommegang and the other parties will be considered.
The Middlefield case has been assigned to state Court of Claims Judge Donald Cerio, who is based in Madison County and who will be handling the matter as an acting Otsego County state Supreme Court judge. No hearing date has been set.
Goldberg said Cooperstown Holstein has lined up as co-counsel a lawyer representing Anschutz Exploration Co. in its lawsuit seeking to toss out a similar drilling ban enacted by the town of Dryden. The judge handling that case has blocked requests from environmental groups seeking to have their arguments also be given consideration, she said.
Otsego County Chamber of Commerce President Rob Robinson said his group is divided on hydrofracking and has not taken a formal stance. However, if a major employer such as Ommegang was considering pulling out of the region, the chamber would work towards helping it stay, he said.
"Anything that would force a company to think about moving out of the region is a problem that we would need to deal with," Robinson said.
The village of Cooperstown, in seeking to have the Middlefield zoning rule upheld, also pointed to potential economic consequences for the region and the importance of allowing municipalities determine their own character through local zoning laws.
"The economic devastation to our historic village and our world class attractions -- the National Baseball Hall of Fame and Museum, The Farmers' Museum, the Fenimore Art Museum, the Glimmerglass Festival, the historic Otesaga Resort Hotel, Bassett Healthcare Network, and Otsego Lake -- would be incalculable," the legal brief stated.
It went on to say: "The Village has an interest in this case because the preemption challenge filed against local bans on gas development and infrastructure threatens to undermine the longstanding power of towns to use zoning to protect community character."
At issue in both the Middlefield and Dryden cases is whether state statute trumps local attempts to zone out gas drilling.
The gas industry, in its court papers, argues the state Oil, Gas and Solution Mining Law, enacted in 1981, "supersedes all local ordinances relating to natural-gas drilling, subject only to two limited exceptions for the exercise of jurisdiction by local governments: local roads and property taxes."