April 4, 2012

The mystery memo

I mentioned a while ago that Anschutz attorney Tom West was crowing about a memo he'd dredged up in the state archives. As was reported then:

A lawyer involved in the attempt to scuttle the Middlefield ban on natural gas extraction said Thursday he has uncovered documents from three decades ago that support his contention that state lawmakers wanted to stop local governments from enacting land-use laws impeding drilling activities.

As usual, reality is less exciting than Tom West claims it is. You can find the whole Governors Program Bill Memorandum (78KB PDF) at his site, but the relevant paragraphs seem to be:

Local laws relating to regulation of the oil, gas and solution mining industries are superseded by Article 23 of the Environmental Conservation Law, as are local laws imposing fees similar to that created herein. However, local taxing authority remains unaffected....

The provision for supersedure by the Oil, Gas, and Solution Mining Law of local laws and ordinances clarifies the legislative intent behind the enactment of the oil and gas law of 1963. The comprehensive scheme envisioned by this law and the technical expertise required to administer and enforce it, necessitates that this authority be reserved to the State. Local government's diverse attempts to regulate the oil, gas, and solution mining activities serve to hamper those who seek to develop these resources and threaten the efficient development of these resources, with Statewide repercussions. With adequate staffing and funding, the State's oil, gas and solution mining regulatory program will be able to address the concerns of local governments and assure the efficient and safe development of these energy resources.

There is, as always, no mention of land-use regulation here at all. There's a bit of "go energy!" shouting, and a bit of grousing about "diverse attempts to regulate". I can't say I'd want to hang the entire case on the word "diverse" as magically including land-use issues that aren't specifically mentioned, especially since the bill wasn't passed in the manner normally required to modify home rule powers.

They aren't planning to try to re-open the Dryden case with this not-really-new bit of evidence. By my reading it pretty much recapitulates an argument that didn't go over well here. They hope, though, to insert it into the parallel Middlefield proceeding:

In the Middlefield case, Judge Cerio noted the absence of any clear indication in the legislative history to the 1981 amendments to the Environmental Conservation Law to support a finding of broad preemption. Subsequent to receipt of his decision, The West Firm combed the state archives based upon the tip from a retired DEC employee, which indicated that there may be archived documents shedding light on the legislative history of the supersedure provision.

I suspect this memo adds as little to that case as it does to the Dryden case, but it certainly gives Tom West another opportunity to bluster.

Posted by simon at April 4, 2012 12:19 PM in
Note on photos