Dryden & Middlefield Drill Ban Appeals Filed; NY Media Still Screwing It Up

Trying something new here:  A paragraph-by-paragraph critique of some below-the-radar reporting on a recent development in New York State's ongoing contest over shale gas.

(Yes, yes — I'm familiar with the concept of lost causes; just can't help myself, at least for today.)

Appeals Filed In Middlefield And Dryden Fracking Ban Cases Posted on October 16, 2012 at 4:16 pm by Liz Benjamin Attorney Tom West has formally appealed two watershed state Supreme Court decisions that upheld local hydrofracking bans in the towns of Dryden and Middlefield.

Statewide story selection bias:  In the day-and-a-half-long period following this post, which represents a minor scoop for Liz Benjamin, writing for the Albany Times-Union's Capital Confidential blog, Google News searches show that not a single mainstream media outlet in or out of New York State followed up with their own coverage of the news developments reported here.  Given the volume of reportage the Dryden and Middlefield cases have received, both prior to and after the early 2012 decisions by the first-round judges — and given the ease with which developments slanting in the drilling opposition's favor receive nearly instantaneous, widespread coverage — this does seem remarkable.

Word choice:  Though I realize it's a little late in the game to be bringing this up, recent in-state public opinion surveys have demonstrated that the words "hydrofracking" and "fracking" are perjorative, as compared to "drilling," "shale gas," or "natural gas."  More to the point, in the context of this particular issue, these descriptors are incorrect:  Both towns, motivated by especially strong local public concern over the issue of fracking for shale gas, have decided to attempt to zone out (within the category of heavy industry) any drilling for fossil fuels, including old-school wells.  (Though not, apparently, salt mining, or geothermal development, both of which involve similar equipment, impacts, and land use.)

The Dryden (Tompkins County) case was initial brought by brought by an oil and gas company, the Middlefield (Otsego County) case by Jennifer Huntington, a dairy farmer and president of Cooperstown Holstein Corporation. Both cases, which essentially held that state law regulating gas drilling does not take away a town’s right to enact zoning, were initially decided in February.

Misleading and incorrect through imprecision:  Neither town sought to keep drilling out of certain zones, such as what is currently being contested in PA (in that state's carrot-and-stick, impact fee showdown); both sought to zone it out completely through townwide bans.

Appeals were expected, so the news that they are now formally in motion does not come as a surprise.

Errant observation:  It's true that lawyers for the pro-drilling side had long previously preserved their clients' right to appeal.  But a number of anti-drilling activists have since put forth the theory that Anschutz, the plaintiff in the Dryden case, had had enough of the deteriorating situation in New York State, was dropping out, and that the appeal would therefore die through lack of funding.  Though Benjamin failed to notice or report a secondary development on this point, this speculation has now been proven as partly true:  The papers show Anschutz is out, and Norse Energy has substituted itself, taking over at least part of the local lease interest, as well as the plaintiff role.  So the perfection of that appeal, especially through this substitution, might come as a surprise to some.

West said the records on appeal, appellate briefs and fees for the appeals were filed in both cases yesterday in the Appellate Division, Third Department Since the Dryden and Middlefield decisions, the city of Binghamton saw its moratorium struck down by a judge who argued that it was premature because the state hasn’t yet made a decision about whether to allow the controversial natural gas drilling process in the Marcellus – and eventually perhaps the Utica – shales.

Omission:  In addition to the City of Binghamton's (so-far struck down) temporary moratorium — not a permanent ban — a fourth municipality has at least technically entered the realm of litigation on this same issue.  An acreage-owning hunting association, the Highland Field & Stream Club, on Oct. 11 was reported solely by pro-drilling sources as preparing to sue the Town of Highland (Sullivan County) on constitutional "takings" grounds.  Unfortunately — except, by my count, two outlets local to the Catskills — media statewide have either missed or chosen to ignore this story. Also, errant observation:  The potential of the Utica shale in NY is no longer uniformly discounted by current conventional wisdom.  See, for instance, Norse Energy's list of permit requests, as well as Minard Run's forecast for its Finger Lakes interests, purchased from Chesapeake Energy. Lastly, this is incorrect through imprecision:  NY's moratorium, impact study, and draft regs concern high-volume hydraulic fracturing within tight reservoir rocks.  No distinction is made between development of Marcellus or Utica shales (nor, for that matter, Upper Devonian shales, ownership of which a partly overlapping set of NY landowners also possess — whether or not in-state media continue to remain ignorant of this fact).

There has been some question as to who would be paying for these appeals. I asked West about that, and this was his response: “There is very little funding for these appeals. In fact, although one operator has pledged a small amount, we have not been paid yet. Although this issue is critical to industry, the lack of funding is directly related to the apathy towards New York based upon the low commodity pricing and the high degree of regulatory uncertainty.” “Even in the eastern part of Pennsylvania, which does not have any liquid fractions, most operators have substantially curtailed their operations or mothballed their drilling operations until the commodity price increases. I believe that I read somewhere that the rig count in the US is the lowest in 10 years.” So, in other words, West is appealing without getting paid? “Yes,” he said.

Bias due to ignorance, bad assumption, and blindness to obvious facts:  As should be clear from Jennifer Huntington's role as the Middlefield plaintiff, industry is not the only interest group with a motive for funding these cases.  In fact, landowners and ideologically supportive non-industry others have fund-raised to support the Middlefield lawsuit (though, for all I know, they may not have raised enough to cover all the costs to date, or future costs).  A phone call to Dick Downey of the Unatego-area coalition, or Binghamton lawyer Scott Kurkoski, who's been involved in the Middlefield case, would certainly firm this up. Lastly, here are some presumably newsworthy future sequencing forecasts from Tom West that have been left out:  "The Appellate Division, Third Department will establish a briefing schedule and ultimately schedule these cases for oral argument. There will be briefing from the Respondents and Amicus filings in support and in opposition to these appeals. We are cautiously optimistic that the matter will be scheduled for the February Term of the Appellate Division, which occurs in early February. Typically, the Appellate Division renders a decision 6 to 8 weeks after the oral argument."