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SUSAN — Tuesday afternoon in Albany in the opulent chamber where the 7 Court of Appeals judges hear oral arguments, the fracking debate closed an important legal chapter. There were two related cases being argued, The Matter of Wallach v. the Town of Dryden and Cooperstown Holstein Corporation v. Town of Middlefield. At issue was whether the communities of Dryden and Middlefield had the right to adopt local zoning ordinances that prohibit high volume hydraulic fracturing. // Before an overflow crowd, the 7 judges heard two sets of arguments, beginning with the Dryden case. Oil and Gas attorney Tom West spoke first, but didn’t get too far before Chief Judge Jonathan Lippman interrupted. You will also hear the voice of Judge Victoria Graffeo.

BYTE 1 So your honor, may it please the court, it’s a clear pre-emption clause. What does that clause say? The provisions of this article shall supercede… What happened here? This is a unique case — It does, your honor. 1:15

SUSAN — And that was pretty much how it went. The judges peppering each attorney with questions, the attorney, like a student defending a doctoral thesis, stopping and starting, trying to explain complicated legal arguments before the next round of fire. // While the argument made by Tom West on behalf of the trustee of Norse Energy was that Dryden didn’t have the right to ban fracking because of an implied pre-emption, the law doesn’t actually say that, which Judge Victoria Graffeo pointed out, and Chief Judge Lippman followed up on.

BYTE 2 For express pre-emption, The legs has known how to do it. expressed pre-emption so it’s funny that didn’t specify… we’re talking about express pre=emption!” :45

This idea, that the legislature COULD have explicitly written into the law that the state supercedes zoning cropped up several times. Here, Judges Graffeo, Rivera and finally Lippman ask West why the legislature couldn’t simply add zoning to the rules if they rule against his client…

BYTE 3 It’s pretty drastic to change long time residential zoning …If we hold against you… Is it up them your honor… let’s hear from your colleague.” 1:13

When it came time for Deborah Goldberg, the attorney for the town of DRYDEN to make her arguments, the judges quickly zeroed in on whether the concept of home rule might stand in the way of a unified state energy policy. Here’s Chief Judge Jonathan Lippman, attorney Deborah Goldberg and Judge Robert Smith..

BYTE 1 Lippman “Let’s say we accept your argument…is that going to work in terms.. isn’t that a harder argument… if you determine… but we’re going … that wants to?” 1:02

SUSAN — The judges also wondered if the elected officials who wrote the law 3 decades ago could have predicted the kind of industrialization that comes with hydrofracking. Here’s Chief Judge Lippman, followed by attorney Deborah Goldberg.

BYTE 2 Lippman “Counselor Was anybody thinking about hydrofracking? No your honor. We do not rely … this court must find there is no intention to pre-empt. 1:00

SUSAN — But during arguments made by Goldberg’s colleague, attorney John J. Henry on behalf of the town of Middlefield, the judges returned to the question of zoning, this time challenging its scope and use. Judge Robert Smith followed by attorney John J. Henry:

BYTE 3 SMITH Sounds to me like you’re saying you can do anything you want if you say it’s about zoning. I would agree, that you cannot tailor … They had a whole meeting that … oil… as the most recent example.” :48

SUSAN — Attorneys on both sides agreed that the judges were prepared and engaged and understood that the issues here revolve around competing rights and the interpretation of legal language written years prior to the development of high pressure hydrofracking. The Chief Judge summed it up…

BYTE 4 LIPPMAN But you would acknowledge that there are sound public policy arguments on both sides. You … municipalities believe we want to have what has … they’re both good arguments. :47

SUSAN — We have been listening to portions of the oral arguments in Wallach v. Dryden and Cooperstown Holstein v. Middlefield which were heard by the Court of Appeals on Tuesday. 5:18

SUSAN — Tuesday afternoon in Albany in the opulent chamber where the 7 Court of Appeals judges hear oral arguments, the fracking debate closed an important legal chapter. There were two related cases being argued, The Matter of Wallach v. the Town of Dryden and Cooperstown Holstein Corporation v. Town of Middlefield. At issue was whether the communities of Dryden and Middlefield had the right to adopt local zoning ordinances that prohibit high volume hydraulic fracturing. // Before an overflow crowd, the 7 judges heard two sets of arguments, beginning with the Dryden case. Oil and Gas attorney Tom West spoke first, but didn’t get too far before Chief Judge Jonathan Lippman interrupted. You will also hear the voice of Judge Victoria Graffeo.

BYTE 1 So your honor, may it please the court, it’s a clear pre-emption clause. What does that clause say? The provisions of this article shall supercede… What happened here? This is a unique case — It does, your honor. 1:15

SUSAN — And that was pretty much how it went. The judges peppering each attorney with questions, the attorney, like a student defending a doctoral thesis, stopping and starting, trying to explain complicated legal arguments before the next round of fire. // While the argument made by Tom West on behalf of the trustee of Norse Energy was that Dryden didn’t have the right to ban fracking because of an implied pre-emption, the law doesn’t actually say that, which Judge Victoria Graffeo pointed out, and Chief Judge Lippman followed up on.

BYTE 2 For express pre-emption, The legs has known how to do it. expressed pre-emption so it’s funny that didn’t specify… we’re talking about express pre=emption!” :45

This idea, that the legislature COULD have explicitly written into the law that the state supercedes zoning cropped up several times. Here, Judges Graffeo, Rivera and finally Lippman ask West why the legislature couldn’t simply add zoning to the rules if they rule against his client…

BYTE 3 It’s pretty drastic to change long time residential zoning …If we hold against you… Is it up them your honor… let’s hear from your colleague.” 1:13

When it came time for Deborah Goldberg, the attorney for the town of DRYDEN to make her arguments, the judges quickly zeroed in on whether the concept of home rule might stand in the way of a unified state energy policy. Here’s Chief Judge Jonathan Lippman, attorney Deborah Goldberg and Judge Robert Smith..

BYTE 1 Lippman “Let’s say we accept your argument…is that going to work in terms.. isn’t that a harder argument… if you determine… but we’re going … that wants to?” 1:02

SUSAN — The judges also wondered if the elected officials who wrote the law 3 decades ago could have predicted the kind of industrialization that comes with hydrofracking. Here’s Chief Judge Lippman, followed by attorney Deborah Goldberg.

BYTE 2 Lippman “Counselor Was anybody thinking about hydrofracking? No your honor. We do not rely … this court must find there is no intention to pre-empt. 1:00

SUSAN — But during arguments made by Goldberg’s colleague, attorney John J. Henry on behalf of the town of Middlefield, the judges returned to the question of zoning, this time challenging its scope and use. Judge Robert Smith followed by attorney John J. Henry:

BYTE 3 SMITH Sounds to me like you’re saying you can do anything you want if you say it’s about zoning. I would agree, that you cannot tailor … They had a whole meeting that … oil… as the most recent example.” :48

SUSAN — Attorneys on both sides agreed that the judges were prepared and engaged and understood that the issues here revolve around competing rights and the interpretation of legal language written years prior to the development of high pressure hydrofracking. The Chief Judge summed it up…

BYTE 4 LIPPMAN But you would acknowledge that there are sound public policy arguments on both sides. You … municipalities believe we want to have what has … they’re both good arguments. :47

SUSAN — We have been listening to portions of the oral arguments in Wallach v. Dryden and Cooperstown Holstein v. Middlefield which were heard by the Court of Appeals on Tuesday. 5:18

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New York’s highest court hears home rule cases in fracking debate

Tuesday afternoon in Albany, in the opulent chamber where the seven Court of Appeals judges hear oral arguments, the fracking debate closed an important legal chapter. There were two related cases being argued, The Matter of Wallach v. the Town of Dryden and Cooperstown Holstein Corporation v. Town of Middlefield. At issue was whether the communities of Dryden and Middlefield had the right to adopt local zoning ordinances that prohibit high volume hydraulic fracturing.

Oil and Gas attorney Tom West spoke first. ”We think that this really a very simple, straight forward case that the courts below have misinterpreted what it is a very clear pre-emption clause and a very clear statute. [...] What it says specifically, your Honor, is that ‘the provisions of this article shall supersede all local laws and ordinances relating to the regulation of the oil and gas solution mining industries, but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property law.”

While the argument made by Tom West on behalf of the trustee of Norse Energy was that Dryden did not have the right to ban fracking because of an implied pre-emption, the law does not actually say that. The idea that the legislature could have explicitly written into the law that the state supersedes zoning cropped up several times.

When it came time for Deborah Goldberg, the attorney for the town of Dryden, to make her arguments, the judges quickly zeroed in on whether the concept of home rule might stand in the way of a unified state energy policy. Judge Robert S. Smith addressed Goldberg, “It does say in quite a few places in these statutes, ‘we want to foster and grow and have a vibrant energy industry in this state,’ The question is: how are you supposed to do that if any town can prohibit it that wants to?”

Goldberg argued that the law does not create a specific preemption. ”What we rely on is that there has to be a clear expression of intent here. When a law is silent, then, this court must find that there is an ambiguity at best as to the intent of the Legislature and when there is an ambiguity as to the intent of the Legislature, it should find that there is no intention to preempt. ”

Attorneys on both sides agreed that the judges were prepared and engaged and understood that the issues here revolve around competing rights and the interpretation of legal language written years prior to the development of high pressure hydrofracking. Chief Judge Jonathan Lippman summed it up. ”You would acknowledge that there is sound public policy arguments both ways. On the one hand you are saying we should have a comprehensive strategy to deal with such an important issue to our state, which is obviously important. And on the other hand, municipalities believe [...] that ‘we are here, we want to determine how we are going to live, we want to have some voice in how we live.’ So the two competing policy discussions, it comes down to what have the representatives of the people actually done. But I do not think either one of the other policy perspective necessarily prevails automatically. They are both good arguments.”

On Wednesday’s Capitol Pressroom, host Susan Arbetter spoke with attorney Tom West.

On Thursday’s episode, Arbetter spoke with attorney Deborah Goldberg.

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