Somewhat Troubling--
Everything substantial in the NY cases and the Longmont case seems identical (except for prior caselaw). In the NY decision (the Middlefield and the Dryden cases), home rule in land use decisions was universally upheld. However with (as near as I can tell) identical basis in law, the courts found something different.
I've just scanned the decision and it seems to me that the NY and Colorado laws regarding local land use and pre-eemption are nearly identical, the Dryden/Middlefield laws, and the Longmont laws were roughly equivalent, and the arguments on both sides also seemed nearly identical.
NB: Much of this language sounds identical to the NY law, so it seems that maybe ALEC is behind both the NY and the Colorado laws.
ALSO NOTE WELL how the Environmental Conservation Law has been subverted to PROMOTE DRILLING.
The same thing has happened in NY! Kurkowski/West argued that the Oil, Gas, and Solutions Mining Law, which is part of the NY Environmental Conservation Law (ECL), and this subordinate to it's enabling clause and legislative intent of PROTECTING THE ENVIRONMENT, was in fact intended to Promote Mining.
And they always seem to include the phrase about "correlative rights of landowners".
Once that whole package is there, the O+G attys then argue that the legislative intent is to PROMOTE MINING. However, if you trace out the authority of the law back to the state constitution, it is clear this is an usurpation.
NO WHERE can I find a legislative directive that mining activity or O+G development is a duty of the state, or in the state interest.
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Everything substantial in the NY cases and the Longmont case seems identical (except for prior caselaw). In the NY decision (the Middlefield and the Dryden cases), home rule in land use decisions was universally upheld. However with (as near as I can tell) identical basis in law, the courts found something different.
I've just scanned the decision and it seems to me that the NY and Colorado laws regarding local land use and pre-eemption are nearly identical, the Dryden/Middlefield laws, and the Longmont laws were roughly equivalent, and the arguments on both sides also seemed nearly identical.
However, the Colorado courts (in prior caselaw) have (IMO arbitrarily) held that while Home Rule over land use decisions apply, that a municipality cannot completely ban gas drilling.
In Voss v. Lundvall Bros (the "Greeley case") that
In Voss v. Lundvall Bros (the "Greeley case") that
Because oil and gas pools do not conform to the boundaries of local government, Greeley's total ban on drilling within the city limits substantially impedes the interest of the state in fostering the efficient development and production of oil and gas resources in a manner that prevents waste and that furthers the correlative rights of owners and producers in a common pool or source of supply to a just and equitable share of profits.
Huh? Do they have local land use controls, or not?
NB: Much of this language sounds identical to the NY law, so it seems that maybe ALEC is behind both the NY and the Colorado laws.
ALSO NOTE WELL how the Environmental Conservation Law has been subverted to PROMOTE DRILLING.
The same thing has happened in NY! Kurkowski/West argued that the Oil, Gas, and Solutions Mining Law, which is part of the NY Environmental Conservation Law (ECL), and this subordinate to it's enabling clause and legislative intent of PROTECTING THE ENVIRONMENT, was in fact intended to Promote Mining.
They way they accomplish this is in when they bolt O+G regulation into the Environmental Conservation Law.
They are very clever to say that the REASON for REGULATING the oil and gas industry under the ECL is to foster:
They are very clever to say that the REASON for REGULATING the oil and gas industry under the ECL is to foster:
"efficient development and production of oil and gas resources in a manner that prevents waste" (an environmental purpose)
This language in the Colorado Law is nearly identical to the NY ECL.
And they always seem to include the phrase about "correlative rights of landowners".
Once that whole package is there, the O+G attys then argue that the legislative intent is to PROMOTE MINING. However, if you trace out the authority of the law back to the state constitution, it is clear this is an usurpation.
Here's the hierarchy of law in NY. Home Rule Powers (zoning) and Police Powers are both based in PROTECTION. This is evident in all levels of NY law, from the Constitution, the NY Town Law, and the ECL.
I am omitting the full text of the enabling statutes and the constitutional authority, but you may want to look these up. (very interesting).
NO WHERE can I find a legislative directive that mining activity or O+G development is a duty of the state, or in the state interest.
The Colorado Supreme Court determined that the Greeley ordinance was preempted by state law. The Court stated:
Because oil and gas pools do not conform to the boundaries of local government, Greeley's total ban on drilling within the city limits substantially impedes the interest of the state in fostering the efficient development and production of oil and gas resources in a manner that prevents waste and that furthers the correlative rights of owners and producers in a common pool or source of supply to a just and equitable share of profits.
Let's remember Chip Northrup's early presentations that the notion of "pooling" refers to conventional oil+gas development. However shale gas deposits are SOLID ROCK, so the notion of "pooling" is irrelevant and a false analogy.
See: https://www.youtube.com/watch?v=UXszKYLqcRY or http://www.scribd.com/doc/69733839/Compulsory-Pooling-of-Shale-Wells
See: https://www.youtube.com/watch?v=UXszKYLqcRY or http://www.scribd.com/doc/69733839/Compulsory-Pooling-of-Shale-Wells
They then go on to state something rather bizarre:
In so holding, we do not mean to imply that Greeley is prohibited from exercising any land-use authority over those areas of the city in which oil and gas activities are occurring or are contemplated.
In sum, the Colorado courts, with the SAME BASIS IN LAW AS NY, found that promoting oil and gas development is in the interest of the state, and that while a town has Home Rule authority over local land use (YAY!), they can prohibit such mining activity in certain areas, but cannot ban it altogether (Huh?).
Local municipalities have the power to say No to Drilling,
as long as they say Yes to Drilling.
as long as they say Yes to Drilling.
I see no reason why the NY courts could not have done something similar.
Since I am not a lawyer,
I would appreciate analysis from experts... :)
I would appreciate analysis from experts... :)
Best,
BH
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