Karla Fisk is married to one smart cookie of a lawyer . . . . Phil Simpson points out that the DEC attorneys took dictation from Chesapeake’s lobbyist – the same guy that got his butt kicked in the Dryden and Middlefield zoning cases. Anschutz picked him to handle the Dryden case because they couldn’t find any Colorado attorneys that could argue that zoning doesn’t apply to gas wells (by magic ? ) because zoning applies to gas wells in Colorado. He was picked t0 handle Middlefield because Anschutz subsidized that plaintiff, local corporate welfare queen Jennifer Frackington. The DEC copy his stuff down as their own, because they are too lazy to look up the case law themselves. Or they aspire to hit the revolving door and emerge as fracking shills, like former DEC staffer Greg Sovas.
Flawed position on hydrofracking
To the editor
Published 12:32 a.m., Saturday, July 7, 2012
There are many disturbing aspects to the emails between the state Department of Environmental Conservation and Thomas West, an Albany-based lawyer representing gas drillers, and his firm.
Among them: Even on an issue that is as “under the microscope” as DEC’s decision on hydrofracking, there seems to be neither equal access nor a level playing field.
Having devoted time to analyzing the home rule/local zoning issues involved in hydrofracking, I was particularly disturbed to see the documents obtained by the Environmental Working Group show that, nearly a year ago, Mr. West was submitting a white paper on what he called “pre-emption of local laws” and having a meeting with DEC General Counsel Steven Russo. DEC’s justification for granting Mr. West early access to the proposed draft environmental impact statement and regulations was to “assess the impacts of the regulatory action on the regulated entity” and accordingly to “gather this data” presumably needed for this task. Even if this explanation is accepted at face value, it does not provide cover for this meeting to discuss whether towns have the legal ability to zone out hydrofracking. The “regulated entity” has no special “data” on this issue, which is a legal one ultimately to be determined by the courts.
However, in the September 2011 draft environmental impact statement, DEC’s position was that it would be the determiner of whether to issue drilling permits in areas where local towns had zoned out hydrofracking.
The white paper submitted to DEC by the West Firm argued state law superseded the rights of municipalities, stating they “do not retain any authority to regulate land use (i.e., zoning).” Two state courts have since found that view to be wrong, upholding zoning bans enacted by the towns of Dryden and Middlefield.
That DEC would entertain such a considered effort by Mr. West to influence DEC on a subject that in no way concerns technical knowledge of the regulated entity shows how deeply flawed are DEC’s efforts to make decisions about hydrofracking for the safety and benefit of all New Yorkers.
New York City