Title: مسائل حقوقی شامل؛ حفاری برای گاز طبیعی؛ تاسیسات تولید برق

۱۰-۱۸-۲۰۱۲ این وب‌کست فقط برای مشاهده در دسترس است، برای اعتبارات AICP CM قابل استفاده نیست. ارائه دهندگان: Wendy Marsh Wendy A. Marsh, Esq. مسائل حقوقی مرتبط با تولید انرژی در ایالت نیویورک را بررسی خواهد کرد. تمرکز اصلی ارائه او ارائه به روز رسانی در مورد مقررات مربوط به هیدروشکستگی با حجم بالا در ایالت نیویورک، از جمله مسائل مربوط به قانون بررسی کیفیت محیط زیست ایالتی (“SEQRA”) و پیش نویس مقررات تحت بررسی توسط وزارت امور خارجه نیویورک خواهد بود. حفاظت از محیط زیست (“NYSDEC”). جلسه خانم مارش در مورد دعوای حقوقی فعلی مرتبط با ممنوعیت های شهرداری در مورد برخی فعالیت های حفاری، از جمله شکستگی هیدرولیکی با حجم بالا بحث خواهد کرد. این بخش از ارائه شامل بحث مفصلی در مورد دو مورد اساسی است که از حق شهرداری ها برای ممنوعیت این فعالیت ها حمایت می کند، و همچنین تئوری های حقوقی که این تصمیمات بر آن تکیه دارند. تصمیمات مربوط به شکستگی هیدرولیکی در دادگاه‌های بدوی بر احکام قبلی مربوط به استخراج شن و ماسه تکیه می‌کند و در نتیجه، ارائه نیز مستلزم بررسی آن تصمیمات معدنی است. علاوه بر این، در این ارائه، نقش مالکان زمین در این فرآیند، از جمله بحث مختصری در مورد مذاکرات اجاره، تأثیر تصمیمات قانونی در اجاره، مطالبات احتمالی، پوشش بیمه و ارزیابی اموال مورد بحث قرار خواهد گرفت. به عنوان بخشی از این بحث، من به طور خلاصه ادغام اجباری را بررسی می کنم، که فرآیندی است که در آن مالکان املاک می توانند مجبور شوند بدون موافقت با عقد اجاره، اجازه خروج گاز طبیعی از زیر ملک خود را برای جبران خسارت بدهند. در نهایت، پس از اتمام بحث هیدروشکستگی، خانم مارش مقررات ایالتی در مورد مزارع بادی تجاری در ایالت نیویورک را بررسی خواهد کرد. تا همین اواخر، این تصمیمات در سطح شهرداری انجام می شد. این اختیار اخیراً با تصویب ماده ۱۰ قانون خدمات عمومی که در مورد مکان‌یابی تأسیسات عمده تولید برق اعمال می‌شود، سلب شده است. در این بخش از ارائه، قانون جدید و همچنین مقرراتی که به تازگی ابلاغ شده است، بررسی خواهد شد. هدف اصلی این بحث، توضیح تاریخچه از کنترل محلی تا کنترل ایالتی برای این پروژه‌ها و ترسیم موارد مشابه با مقررات پیش‌بینی‌شده هیدروشکستگی هیدرولیکی با حجم بالا در ایالت نیویورک است.

قسمتي از متن فيلم: Hi my name is Benjamin Lee and I just want to welcome everyone it is now 1 p.m. so we’ll begin our presentation shortly today on October 18th we’ll have our presentation on legal issues involving with a drilling for natural gas and the siting of electric generating facilities in state of New

York given by Wendy Marsh for help during today’s webcast please feel free to type your questions in the chat box found in the webinar tool bar to the right of your screen or call one eight hundred to 63 63 174 content questions please feel free to type those in the

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Planning org slash cm select today’s date October 18 and then select today’s webcast this webcast is available for 1.5 cm credit we are recording today’s webcast and it will be available along with a 6 slide per page PDF of the presentation at utah APA org webcast archives at this time I’d like to

Introduce art Buckley will introduce our speaker Wendy Marsh good afternoon thank you for joining us this afternoon it is my distinct pleasure to introduce one day a marsh a partner Hancock Esterbrook counselors at law in Syracuse New York wendy is a partner in the environmental practice and a leader traits on

Representing small and large businesses manufacturers contractors lenders borrowers Hospital educational institutions in the areas of environmental zoning and land use law miss Marsh counsels clients on environmental compliance including assisting on permit audits and defending clients and enforcement actions commenced by regulatory ages including US EPA US Army Corps of Engineers New

York State Department of counseling conservation and other local environmental authorities she also extensive experience in assisting clients through environmental issues that arise during transaction refinancing activities which often trigger the unknown environmental liabilities of properties miss bars routine ly assist clients through remediation programs at both the state and federal level including the

Comprehensive environmental response compensation liability act cercla or Superfund program in inactive hazardous waste program the state Superfund program your state spills program brownfield cleanup program and voluntary cleanup programs as well as compliance with the related asbestos requirements of the new york state code 56 she is also involved in litigating cases in

State and federal court on issues of liability and cost recovery for such remedial activities miss Marsh also assist clients in competent compliance with the Occupational Safety and Health Act OSHA she also represents clients on land-use matters such as zoning planning and historic preservation laws she assists municipal boards counties and

Developers on compliance matters relating to applicable zoning laws as well as compliance with state environmental quality of your act and federal and state historic preservation laws miss much represents both boards and developers and navigating through the local development approval process including compliance with Sakura ously litigation she brings years of

Experience this uniquely local area of law which comes into play when clients are dealing with controversial project such as large-scale wind energy projects further in order to withstand potential legal challenges mr. Marsh provides assistance with ensuring secret code it’s relating to all individual components of the local approval process

She has a published author and frequent speaker on environmental issues in the law miss Marsh thank you are and I trust everyone some see my slides on their screen and as you can tell from the title this will be primarily a focus on New York State but because I know that

There’s participants that practice in other states and work in other states I’ll try to make it more general than staying in the weeds in New York State before I give a presentation on hydrofracking there’s usually someone that comes up to me before I get started

And say now is this going to be a presentation that’s pro or against and in my response to that question is this presentation is intended to say where we are in the process from the legal side from the regulatory side and some thoughts on where the decisions might be

Made it it’s not intended to be pro and it’s not intended to be anti so I thought I would answer that question that usually arises at the beginning the we’re going to go through the state regulation of high-volume hydraulic fracturing in New York State also talked about the municipal regulation of the

Drilling activities there’s some very fascinating cases working our way through the courts i’m also the landowners involvement in the drilling process and then to the extent we have time i would like to draw some parallels between the regulation of other electric generating facilities under the new

Article 10 of the new york state public service law and in particular for large-scale wind turbines and then again some sauce on the future so starting first with Marcellus Shale I’m sure most of you are very familiar with this background but I think it’s always a good understand I were talking about these

Controversial legal issues this is a formation that it actually extends north east from Ohio and West Virginia through Pennsylvania and then into central and southern New York as you can see on the map this is a New York specific map now geologists believe that there’s as much

As 489 trillion cubic feet of natural gas or over 400 years supply for New York State at its current level of use the depth and the formation of the shell has made extraction difficult and expensive and there’s recent techniques that will spend some time talking about that makes recovery of the natural gas

In this shale economically viable with which is why we’re talking about this issue today hydrofracking that’s a somewhat of a slang term and what is it it is essentially where you have a vertical wellbore which there’s Benton’s vertical well drilling in New York State for over a hundred years and after it’s

Drilled to the death just above the target gas bearing formation the wellbore then extended horizontally and that’s the main difference in this technique is that there’s the ability to drill horizontally and that is drilled in the gas bearing rock which in this case is the Marcellus Shale for up to

Several hundred feet and also there can be multiple Wells that can be drilled laterally from the same vertical wealth the you get the hydro portion of the word is the fact that there’s a significant amount of fluid that to create fractures in the rock which

Allows the gas to flow so that’s the new technique associated with the fluids the hydro fracking fluid consists mainly of water and there’s two components in the water there’s a component of sand or propping material and the other component in the water if you’re opposed to hydro fracking you will

Like in those two dangerous chemicals and if you’re in favor of hydrofracking those are similar to solutions similar to dish soap so there’s there’s a wide range of words that are used in the chemicals that are that are inserted with the hydro fracking fluid but essentially the purpose of them is to

Carry the sand in order to allow those fractures to remain open for the gas to flow and also to prevent the growth of bacteria as part of that process now for each well there can be a million or more gallons of water needed to frack each well so there’s a significant amount of

Water and the water needs to be transported to these sites and it can be as many as 200 truckloads required to supply the water necessary for a single well so on to the regulation component in New York State the environmental impacts of a project are reviewed under the State Environmental Quality Review

Act now each stage is going to have a program with a similar name the federal program is NEPA and some states will have a state NEPA or a different name of that sort but every state has this type of review and I’m sure all of you are familiar with whatever your state

Processes in New York State any project that is approved by any agency there needs to be a determination on the environmental impacts before that decision is made and in New York State what’s issued by that board is either a negative declaration which means that there’s no environmental impacts that

Need to be studied or a positive declaration that says that there needs to be additional study of the environmental impacts the primary document is an environmental impact statement if there are impacts to be investigated and studied and of course in the hydrofracking they have gone through the process that there’s

Environmental issues to be investigated so the main component is an environmental impact statement there’s components for public comment and there’s a requirement to respond to those public comments and then the ending of the seeker process is seeker findings and this presentation will go back to seeker on a number of different

Levels because it really is an area of law that that is specifically set up for this type of situation where the public and the regulating agency can do some investigation work and make some decisions on what the impacts are now specific to drilling activities in New York there was a generic environmental

Impact statement on oil gas and solution mining for the regulatory program that was prepared in 1992 and what that document did is took a look at the drilling activities in 1992 and talked about the environmental impacts associated with those and completed a seeker review at that time the word

Generic means that it’s generic to the entire state it isn’t site-specific so it does to talk about specific environmental impacts that may be on you know one specific road in a community or in one specific geological formation it’s more of a generic nature and when this new hydro fracking nique came into

Being in you know late 2000s you know I’ve Dec a richer we already have this in generic environmental impact statement we already have a process to issue mining permits you know is this so different that we need to start from the beginning and regardless of what Dec thought of originally certainly we all

Know at this point that yes there’s a number of environmental impacts that required further study um this slide just highlights the the main environmental impacts we could do a full presentation on those issues on the first one is the chemicals in the process water and and as I alluded to there’s

Different versions of how many chemicals the impact of those chemicals how they act in the solution depending on the framework where you come from but that’s one of the main environmental impacts you have the noise activities associated with the drilling up the left now those are temporary impacts associated homes

Um and I have an etcetera there but the other main wanted how do you deal with all that water how do you get the water into the well how you deal with the spoils that come out of the well when it’s drilled and how are those handled so with those environmental impacts in

Mind a Dec came out with a supplemental draft generic environmental impact statement in September 2009 and they took a look at the new environmental impacts associated with this hydro fracking with the additional water with the chemicals and this entire new process and they came up with a draft

And that was in 2009 and on that draft there were comments because as I showed you on the first slide that one of the seeker process and to receive comments and there were public hearings and the first one they had about 2500 people attend the hearings and about 200 verbal

Comments made during those hearings and they also received about 13,000 written comments on this first draft supplemental generic butter mental impact statement then the politicians became involved and there became a significant public involvement on this discourse and Dec was directed to revise their draft supplemental generic environmental impact statement and then

That was a directive from the governor to go back and take a look at it again and do another draft of the environmental impact statement and that was actually issued in of 2011 and unlike the first one there were a lot more public hearings and but when the public comment period ended in

January of 2012 there were tens of thousands of comments on this next round so in a lil over a two-year period those comments grew from 13,000 to tens of thousands so clearly this this is an issue that the public is is very very involved in and where we are in the

Formal process for the seeker process dec needs to respond to each of those tens of thousands of comments and they have been working on it since the comment period ended in january but they haven’t gotten to the point where they prepare what’s called the final supplemental draft generic environmental

Impact statement and in essence what that document is there is a response to all those comments we were told that if this year but i don’t believe that’s going to actually happen due to a couple of other things that we’re going to talk about today so right now status quo as

Far as CC reviewing those comments in preparing responses know the secret process is not necessarily the law that’s going to either approve or deny the issuance of permits for hydro fracking it’s a procedure that’s set up to learn about the environmental impacts figure out ways to mitigate them but

Ultimately what really the legal piece is a permit is a mining permit to allow this activity and what are the permit conditions going to be and what is what are going to be the legal requirements and those will come out in terms of the New York State Department of Environmental Conservation regulations

And as I mentioned the DC has been issuing mining permits for decades now so they have a system in place for applications for reviewing those applications for public comment infer issuing those applications but because of this new technique what they need to do is revise those regulations and have them specific to

The hydrofracking activities and that’s what they did and they actually proposed the regulations which are amendments to existing regulations and the comment period for those regulations gets my next slide they were proposed in September and it was a pretty quick comment period to be honest with you

They had the comments ending at the same time that the seeker arm comments ended which was January 11th they did hold public hearings on the regulations and under New York State when you’re proposing regulations there’s a certain time frame that you have to comply with and the last public hearing on these

Proposed regulations and again these this is the real meat of the program and this is what you know that the people in New York State are going to have to live by is what these regulations say the last public hearing was in November of 2011 so there’s a requirement for the

State to complete those regulations within a year to finalize them and for the folks in New York State or who follow on some of the discussions with the commissioner and the governor on this issue in New York State there was recently a directive to study the health

Impacts and that was a directive from Governor Cuomo and it was sent over to Commissioner Mar tends to study the health impacts associated with drilling and it just happened within the last few weeks and the question is who’s going to study those health impacts whether it’s

Going to be the Department of Health or an independent study or maybe have not seen details on and I also haven’t seen whether or not the study of those health impacts are going to somehow be put back into the seeker process and or require amendments those draft regulations

My crystal ball on this is that the study of these health impacts is going to require some amendment to the seeker process and some amendment to those regulations such that the process is going to have to start over I have a framework for what that means as far as

Starting over but i would expect there will be another round of public comments specific to the health impacts and that certainly is going to change the tightening process in terms of when DC is actually going to make some decisions on seeker and some decisions on visual regulations it’s possible that this may

Have been a decision to push back those controversial decisions by Dec until after the election um so that you know the the actual students of any final action by Dec would happen in 2013 now my next topic is on well by way of summary we have DC needs to complete the

Secret process issue the final regulations there will be litigation over seeker and there will be litigation over the regulations so even under a best timing scenario that the health impacts that are currently directed to be reviewed are formalized into the dress and something final is issued by

DC in terms of the seeker findings and the regulations in say first quarter 2013 there’s going to be years of litigation before I think those will be finalized so the next topic here it’s local authority we talked about the state authority to issue permits and we also talked about how the legislature

Has become involved a bit and we all know that this is a very controversial issue that arises as we get our coffee as we eat our dinner as we tell people that you know we work in a field even related to environmental there’s a lot of opinions out there and there’s a lot

Of discussion on it so there is also a significant amount of activity at the municipal level which for purposes of this call i’m sure you’re living with it it becomes an election issue it becomes an issue that that’s that’s subject to voting and political power and it’s

Interesting that this is an issue that was actually discussed during the presidential elections and yet it’s actually our town boards and our village boards that are actually making some pretty significant decisions with regard to this important issue so in New York State some things can’t be regulated locally adult entertainment if any of

You are in a municipality where there’s been someone that wanted to come in and put in an adult entertainment business I’m sure your lawyers had to tell you that you can’t ban it your your town board may want to your supervisor may want to but it can’t be banned because

The First Amendment rights then there’s also components of sand and gravel mining that can’t be regulated and then we’re going to spend a fair amount of time talking about that and then winter rights we will hit on the ability to regulate the at a local level and why

Can’t you regulate things locally and some authority is preempted and that means that the state has said you can’t regulate it it’s going to be a state level regulation and that can also happen on the federal level that can be done through the state constitution Federal Constitution it can be specific

Laws statutory loss and then it’s one that will be talking about and then usually the courts have to examine whether or not something has been preempted and the cases are are pretty interesting as we go through them so the seminal case in turn of hydrofracking is a case called mereb through run gravel

Products versus the town of Carroll and this was a case that was decided in 1987 and this was a case that looked at the mind land reclamation law in the mind land reclamation law governs sand and gravel mining and what that law says is that the statute says that for

Purpose of stated hearing this title shall supersede all other state and local laws relating to the extractive mining industry provided however that nothing in this title shall be constructed to prevent any local government from enacting zoning law or ordinances or local laws which impose stricter mind last reclamation standards

Or requirements than those found here in so this law is in essence saying that it’s superseding any local ability to control it’s for sand and gravel mining and they don’t want a local municipality to tell a mine land reclamation company how to do their business well in the

Matter of frou run that municipality wanted to ban sand and gravel mining completely so what the court had to do to see whether or not the municipality has the ability to prohibit it completely within its boundaries and this was a case that went to the highest

Court in New York State and look the judges look at the the provision and said that it ultimately decided that it didn’t take away municipalities authority to ban mining activities what it what the judge said is that the ordinance regulated property uses so by prohibiting in you’re actually

Regulating the use of the land as opposed to the mining activities themselves and the statute said that was specific to appliance pond in it different requirements for fees and reclamation and hours and types of drilling operation and the judge in essence said that the municipality couldn’t regulate those type of activities actual

Operation of the mine itself but it could enact land use regulation that’s available to all of the property uses so one of the arguments that was made in this situation was that the purpose of the mined land reclamation act was to allow the most mining in the state and

The judge didn’t really see it that way what the court said is a municipality is not obligated to permit the exploitation of any and all natural resources within the town as a permitted use if limiting met use is a reasonable exercise of its police powers to prevent damage to the

Rights of others and to promote the interests of the community as a whole so this is the the case that every hydrofracking case kind of refers back to so I wanted to spend a little bit of time on this whole thing even though it’s sand and gravel mining but the

Underpinning of that decision is that as long as your land use is regulating the property and not specific to the operation of sand and gravel mining and it would be upheld and there’s there’s a number of other cases specific to the sand and gravel mining to say what a

Municipality can regulate you can’t regulate the expo mission we we don’t need to go into those for purposes of battle fracking discussion so the next statute we’re going to talk about is article 23 of the ECL which also has oil gas and solution mining and that’s a different title

Under that article the sand and gravel mining is under Article 23 as well so the seminal case on this one is in the town of threaten and it was recently decided and this this is going to become the seminal case on hydrofracking the town of Dryden in August of 2011 amended

Their ordinance to ban all activities related to the exploration for in production or storage of natural gas and petroleum on one side bar on this case is there’s actually well as I understand in the town of Dryden they’re not the hydro fracas that we talked about earlier in this conversation so there’s

Some that that this law was enacted and there’s there’s existing well actually doing that drilling activity in any event and she’s had leases for over 22,000 acres which is over a third of the town so after this law was enacted they commence an action against the town

Of Dryden and asserted that there was that the oil and gas solution mining law preempted the town’s ability to prohibit that activity and the interesting part is which will ultimately come up in some type of litigation is that the petitioner claimed that they’d expended approximately 5.1 million dollars in

Activities before the enactment of the band so the legal issue that the judge has to decide was is the ability to program the activities associated with the exploration for production or storage of natural gas or petroleum preempted by the oil gas and solution mining law and

Just like I read to you the provision for the sand and gravel mining this was a little bit different the provisions of this article shall supersede all local laws and ordinances related to the regulation of oil gas and solution mining activities industries will not supersede local government jurisdiction

Over local roads for the rights of local government under the real property tax law so it is a little different than the one that was discussed infra run but it is pretty similar and that’s where the the two arguments come in the petitioner argued that it was completely dissimilar

Not the same as free run and the municipality argued that they’re essentially the same case he sided with the FRU run the decision made the findings that the provisions are nearly identical and there was an analysis doing not you know comparison by comparison and going back a Luther’s

There’s neither one of those meaning the sand and gravel in this one contained a clear expression of legislative intent to preempt local law over land and zoning and that’s really the crux of the argument you know did the state legislature legislature intend to eliminate any land use control so the

Band was upheld for the exact same reasons set forth in free run it was interesting in this case there was a similar article that the petitioners tried to say that um that the the act was intended to encourage the maximum ultimate recovery of oil and gas regardless of other considerations

And the judge just did not agree with with that affect the next case that was decided just about a week later is Cooperstown case in the town of middlefield very very similar issues on the count of Millfield board amended its zoning law and again a month later but

Actually I month earlier in this one to prohibit heavy industry for all oil gas or solution mining and drilling with you know according to the court essentially banned all oil and gas drilling in the town this legislation had a lot more definitions but in essence this is the

Same thing at the town of Dryden and in this case the plant the plaintiff had to oil and gas leases and the municipality essentially the same question that the judge stated it just a little bit differently to say does the law prohibit local municipalities inning to the local roads and the municipalities rights

Under a real property law in essence it’s the same question but arguably set up just a bit more broadly as far as the way it the way the judge heated up and the judge in this decision actually spent a fair amount of time there’s a number of pages going back through the

Last native history of the oil and solution gas mining law and instead of jumping right to the parallels with fur on it actually this judge went through the legislative history to in essence hold that looking at the legislative history the court finds no support within the legislative history and

Including the amendments that support the petitioners position and again that the town was without the ability to prohibit it and again the judge in its findings essentially stated that the state’s interest needs to be harmonized with the local municipalities and the judge in this case basically says the state

Maintains control of how such procedures while the municipalities get to control where for the exploration know the interesting legal issue out there that has not been subject to litigation just yet is whether or not there is a taking and in essence of taking would be that for example in the Dryden case that

Petitioner in that case claimed that there had that they had expended five million dollars and is there an argument that by changing the laws after those property rights had been gained somehow should be compensated by the town I would expect this will be a legal issue that ultimately will work its way

Through the courts um although because these local laws are popping up in a number of municipalities it’s the only people who would have this argument were the ones that had a lease signed before that local law was enacted the both of these decisions were made by the Supreme

Court which is in New York State our lowest court and they have both been appealed to the third department they’re both in the same Department and the third department has not yet heard the arguments on this and I would expect the third department will hear the arguments

In 1st quarter of 2013 and the decision will come out at some time after that it’s not clear if these cases are going to be formally consolidated for one decision they’re the exact same legal issue um and I would expect that this would be a decision that’s appealed to

The highest court to the court of appeals and that would be the highest court that actually issued that fru run decision in 1987 so from a lawyer’s perspective it is fascinating law to be watching this through the system to see what the judges are going to do with

The municipal home roll there’s one other recent case that I’ll talk about which for those in New York State this one has been getting you know some press at this point because it is another hydrofracking case and this one is a little bit different what the city of

Binghamton did was enact a law prohibiting gas and petroleum exploration activities underground storage and natural gas etc and they did that in December of 2011 but there was a sunset provision and the sunset provision indicated that it would it would no longer be effective after a two

Year period and really the the legal holding in this case is that the judge felt that it was a moratorium and it wasn’t a local law and if the city had followed the procedure for a moratorium then it may have been able to be upheld ultimately it was struck down and the

Reason being is that the city failed to provide the proof that would be required to justify based upon the health and safety of the community for the banning of the gas exploration and again it hinged on the fact that it had a two-year on sunset provision and it fell

On percy’s procedural grounds now the one interesting thing in the dicta that is generally the headline when you see anti hydro folks talking about this decision is the fact that the judge did say in his decision that he agreed with the holdings in the previous cases that

Was talked about that the oil gas solution mining law wouldn’t preempt the local law so that that is a significant case and again another chord is agreeing with with that thought process so now we’ve talked about state level we’ve talked about the municipal level and landowners themselves can also be involved in the

Regulation of this activity because ultimately the drillers need the authority and the right from the landowners and there’s a number of land contracts and lease agreements out there had been negotiated a number of years ago and it’s really are continuing to be negotiated and it’s always interesting when it becomes a neighbor versus

Neighbor issue on these leases you know whether or not even know that your neighbor has such a lease um but there is that that local control now in New York State we have what’s called compulsory integration and that is a very specific procedure that set up that

Even if you refuse to agree to one of the land contracts or the lease agreements if that drilling company is able to get all of your neighbors to agree a certain percentage they get they have the right to take the gas underneath your property and the procedure is set up for compulsory

Integration that even though you don’t have the right to say no we still get compensated for that gas so there’s it’s two different issues that are out there they certainly they can take the gas under certain circumstances but you will be compensated and there’s different choices in far as ours how that

Compensation comes in so that it isn’t a fair statement to say that they’re stealing your gas but but it is a fair statement to say that you don’t you lose the right to to say no so we went through the secret process and the Dec regulations and that’s going to be a

Number of rounds of litigation we have the courts talking about the preemption arguments and on that issue my crystal ball on that is that the that the FRU run case sides with the municipality pretty strongly so if the decisions go to the highest court and the court ultimately

Decides that each municipality has the right to prohibit hydrofracking in their municipality I don’t know how that system is going to to work in New York State because it would be a patchwork and not only a patchwork it would be a patchwork that’s going to potentially change at each election system so I

Personally see that that second bullet on my slide here is probably going to be something that’s that’s going to need to have some public discussion once it works its way through the court system in the next you know your year or two years because that may become a

Situation where the state may choose to become involved and that would be our state elected officials now the third component is the economic reality the whole reason that the natural gas remains in the shale formation is that it was never economically feasible to drill until the new system came in for

Horizontal wells for high-volume hydrofracking and then all of a sudden the economics made sense to pursue that option now New York State the regulations that are currently proposed are the most stringent in the country as far as the proposed regulations which means there’s a significant amount of additional safeguards and all of those

Safeguards cost money in terms of the amount of money it takes to drill the well so there will always be an economic reality and when it makes business sense um to be drilling in New York State vs continuing to drill in Pennsylvania or on some of the other states that have

More lenient regulations what I would see what this economic reality is since we’re years out as far as the court system and the litigation I would assume these two are going to catch up with one another in the future such that by the time everything works its

Way through the court system natural gas might be high enough such that it would make economic sense to to comply with those very stringent regulations assuming they’re up health in assuming again the state doesn’t decide to completely ban the activity so I would see all three of these components

Converging it at some point in the future this is a picture I’m just out in front of a place of business that I recently took and as I work on these controversial projects hydrofracking wind projects development projects you know I always think about really think what we’re looking at right here would

Four be permitted in any of our municipalities if someone had to go in and ility that we’re in as far as the approvals that are needed for the that we’re asking for it this time okay moving on to wind energy regulation what can be learned and how this might start

To interplay with hydro fracking in the future the laws of the past which is what we lived in until last year if someone wanted to construct a large scale wind farm project everything was handled at the local level and the seeker review that we talked about at the beginning which is a wonderful

Procedure out there to learn about all the environmental impacts was handled at the local level and that would be the lead agency generally on the wind projects where town boards they’re the elected officials they’re generally the political folks that were either elected or kicked off the board you know pro or

Against wind farms but assuming there was you know who politics were interested in pursuing it the secret process was one in which that the board could learn about the environmental impacts without before making a decision because every town board that has a wind farm that’s their first one that’s the

First time they’re talking about submerged and the bats a lot of times the high level wetlands investigations that are required the traffic issues the sound issues the wind turbine syndrome issues speaker was set up for a process to educate the municipalities on that so that they can make an informed decision

At the end of that usually there was either a site plan approval or a special use permit that was issued at the local level again it was you know the authority of the local municipality on those issues and with setbacks and distance away from the roads that that

Was a local decision and then the last bullet which I found very important was the license or the host community agreement at the local level and in essence that was somewhat the financial mechanism associated with these one to remind projects and that be the agreement for the payment that

Would be made to that local municipality that you know in essence is barring that the visual burden associated with that wind turbine um that would be the agreement that would that would document that and you know it’s your standard host community agreement just like landfills etc environmental impacts that

Were investigated that you know that the local municipality has to to look at and deal with you’ve got visual impacts you have shadow flicker that impacts some residents versus others noise impacts wetlands birds and bats habitat architectural impacts graphic property value archaeological so all of those

Would have been looked at as part of the process complete local control over the process I was retained on a number of occasions to help the town boards through the seeker process before they would make a decision well state of New York has enacted article 10 of the

Public service law and that is for the siting of major electric generating facilities this completely takes away the local control and it apply it applies to the siting of major electrical generating facilities and this presentation is intended primarily to focus on the wind turbines and it’s

۲۵ megawatts or greater um there was a thought that that 25 megawatts was actually going to be 80 megawatts which would have accepted out on some of the other smaller when projects that would still be able to stay at the local level and the main component in this is that

There’s um a sighting board and the best siting board issued the certificate of environmental compatibility and public need for the wind project now who are the members of the siting board we have the chairs of the Department of Public Service the commissioners of the EC Commissioner of voh Commissioner of

Economic development and the chair of nyserda and there’s two seats at the table for the members of the municipality where the facility is proposed so you have two local folks and five state folks decisions are made on a majority so looking at the issue of the super

Session which is what we talked about with the Home Rule cases for the hydrofracking the siting board can grant the certificate even if it’s in contravention of the local law that determines that the law is unreasonably burdensome and view of the existing technology or the needs of or cost to

The taxpayers so even if the local municipality has setback requirements or different types of requirements that would regulate the wind turbines like they had passed there’s no need for that siting board to enforce them in essence these wind projects are set up as a one-stop shopping no other state or

Local permits are going to be required for the certified facilities now in addition to the super session that the siting board can ignore those local laws those local laws need to be brought to the siting board and the notification to the residents of the municipality has to

Come three days before the filing of the scoping document so that’s not really a lot of time in order to really participate in the process and at the same time there’s a number of provisions in article 10 that say that there’s going to be the public participation but

In essence there was a lot more participation in a lot more ability to participate in the process at the local level um additionally is money when the old process where the municipalities conducted the seeker review the cost for the seeker review was born by the app and so in essence the applicant was

Paying to allow the town board to become educated through the secret process for good at Brad so that was the way that the law was set up for the local municipalities to be able to make informed decisions now under article 10 there is an intervener account so there

Is an acknowledgement for funds for the public to participate but it’s capped at two hundred thousand dollars and it certainly of course is not for litigation and one of the components I’m not sure how this is actually going to work in reality is it set up as an

Intervener account and I don’t know if the municipalities themselves will be able to access that money or if it’s going to be more for a citizen group as opposed to that the governmental body and another component it’s a very quick time frame as far applying for the funds

We have 15 days to apply for those funds um then there’s another fund which will not exceed some dollars um that comes in at the application and again that’s a rather quick window to apply for those funds and you know we started this presentation talking about the seeker

Review and how important that is in controversial topics whether you’re for or against it generally folks that are against a project will use the seeker process to you know gain as much information as possible and make sure every I is dotted every T is crossed and you know that that forces everybody to

To see at the beginning of this presentation I talked about on the seeker process you either issue a negative decoration that says that there’s no environmental impacts that require you office you don’t even have to worry about any environmental impacts and that’s what the state has done with these wind projects that they’re

Considered type 2 actions so there isn’t even that preparation of the environmental impact statement that we had talked about previously so it is going to be very interesting to see how these wind projects are actually cited in the future again there is an economic reality associated with the wind

Projects that in order for them to be economically viable the tax credits have to make sense in you know that hasn’t been lining up for the business of constructing nodes as it has in the past but when the funding does become available for those they’re going to be

Sited in a very different manner than they have been in the past the siting board it has the responsible responsibility to make the final decision they used upon the record you know your standard types of decision making um they’re not supposed to grant on the certificate without making findings about the probable

Environmental impacts on the beneficial addition for substitution of capacity the project is in the public interest adverse environmental impacts will be minimized or avoided and the environmental justice impacts are avoided offset or minimize so on the wind projects I’d municipalities are going to continue to bear the burden of

The visual impacts but they’re not going to have the financial benefits afforded and the host community agreement and also the decisions about sightings you are no longer local decisions that in the past really had been made by the majority of the voters in the municipality if you saw a town board and

Your elected officials going away that you didn’t agree with you voted them out so it’s it’s fascinating to see the wind energy projects going in a manner completely different than the hydrofracking because right now hydro fracking is very much protected in in my mind by the Home Rule whereas the wind

Projects are now completely in the state’s hands and it will be really interesting to see as hydrofracking works its way through the court system if the state of New York ultimately amends this title 10 and then puts the drilling the hydrofracking drilling under the siting board and

Whether or not there would be the political to make that decision on such a controversial project you know in the neuter so um future side I think we’re a number of years off before we the welds are going to be drill and where they’re going to be drilled and I think it’s

Going to continue to be much more of a political decision than a science decision into the future are you may have been take some questions as they went through yes there was several Wendy that one is what were the concerns with the first aft d g is

Just there wasn’t enough public input or what was the reason for for continuing it further sure um you know that the first draft was prepared by dec and they didn’t delve insufficient a sufficient amount into the details it was a mess um and that is about the times that the

That there started to be a lot of political interest in this and i do think that were it not for the ground swell you know from the folks on the street that that one went through just fine um next question was did the prohibitions also stop well pads

Constructed side of the communities such as dryden from portal drilling under the communities and removing the oil and gas in that manner you know they were silent in that regard um putting on my you know missing regulatory caps i would say that they were only with regard to the where

The vertical well started but neither one of those local laws were specific in that regard and the reason that i would say it’s probably just where the well pad is because that’s where the regulated activity within the municipality would start you know there would need to be a building permit their

Wood it would be difficult to enforce it you know for something going on underneath the ground but but that has been delved into a detail with it is a question i think would there be any prohibition of completing spacing unit in that home so that’s why

I do do you understand I mean so that there wouldn’t be any absolutely it’s an interesting question and on the legal side you’re asking whether the compulsory integration would somehow Trump’s the local band in it and I would say that the compulsory it would probably not Trump the band just because

In order for the state to preempt a local regulation it has to be very specific and I’m sure they were not thinking of this as they were enacting that compulsory integration thank you that’s a very good question it’s about the host community benefits package one of which of course is the wind energy

Companies are taking every opportunity to get tax credits additional dollars say from I das and that sort of thing I know that the local lady here has said that they will not approve any monies from the ID a for a pilot program they will not approve any pilot programs that

Do not have local commuter and in that in that regard it may enter in fact immunity benefit back in back to back to the local community because it would still need require a negotiation with the local community between the community and the the prod sponsor and

In that maple way around it and again it goes to the money if the finances are such that a pilot is required to have it make economic sense than they may very well have to deal with the municipality but again that municipalities not going to be coming into it with the enforce

With the ability to truly enforce its owing ordinances but that may be a way around this to retain some of that local control so that in a cage for that pilot agreement in essence they’re going to be entering into a contract but municipality and the wind developer for

Certain agreements but it’s not going to have the force a lot going to be a contract I’m not sure if there’s any other questions whether any other questions that people had on our audience I’ll no I don’t think so Oh God and early well Wendy thank you very much

For your your information it was a great presentation thank you all right thank you and thank you Andy for the great presentation you sorry we didn’t generate too many more questions it’s okay then I do have a question for you yeah this was supposed to have law

Credits attached as well yeah okay will it will it be reflected on our on the calendar I hope oh yeah I’ll make changes to that okay thank you all right thank you very much terrific thank you both so much appreciate it all right thing but bye-bye

For those of you who are still in attendance I just want to go through a few reminders first off to log your CM credits for attending today’s webcasts please go to planning that org slash cm so today’s date october eight teams and then select today’s webcast this webcast

Is available for 1.5 CM credit also we are recording today’s session so you’ll be able to find recording of this webcast along with a six slide per page PDF at utah ap.org webcast archive this concludes today’s session and I want to thank everyone again for attending

ID: YLWa1xnfoTQ
Time: 1350589991
Date: 2012-10-18 23:23:11
Duration: 01:04:26

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