LIVINGSTON COUNTY — Legal arguments in the controversy over hydrofracking were heard Monday morning in Livingston County Supreme Court. Lawyers representing the Town of Avon made appearances, along with the lawyers representing Lenape resources. Lenape is suing the Town of Avon for infringing on its right to conduct business by passing a moratorium on horizontal natural gas hydrofracking.
Judge Robert Wiggins heard arguments from both sides, and one of the few items that all parties agreed on was that this case was not about hydrofracking, rather that it’s about the power, and limits on that power, of an elected municipality to impose regulations.
“Local officials should not be at the mercy of New York State officials,” said Michael McClaran, who is representing the Town of Avon. “New York State has historically never taken away the ability to regulate from municipalities.”
Present in the court were all of the Town Board Members that made the vote for the moratorium, which passed on a margin of 3-2.
Shortly after the moratorium passed, the Town of Avon, which gets their natural gas from wells operated by Lenape, had their gas shut off by the company.
“I wasn’t sure about the moratorium at first, but I listened to my constituents and voted on their behalf,” said Tom Mairs, Avon Town Board member. “I have to say, based on Lenape’s actions since then, I am glad i voted that way.”
Lenape lawyers are arguing that a municipality is not empowered to regulate the oil and natural gas industry, given their limited resources and and the complexity of the issue.
“When you require the comprehensive laws rules and regulations for that go into regulating the oil and natural gas industries, it’s incredibly inefficient to go on a town by town basis,” said Michael P. Joy, who is representing Lenape. “It’s a matter of who regulates the natural gas industry, the state or a municipality. It’s unrealistic to think that it would be able to happen on a town level.”
According to the owner of Lenape, John Holko, the wells currently being operated in Avon are done so based on potential future revenue.
“Avon’s gas production is basically uneconomic for Lenape.” said Holko. “Our operations are based on our future ability to do something with the Town.”
Holko also explained why he had temporarily shut down the wells.
“When it first happened [the Town enacting the moratorium] I thought ‘Oh my God, there is a law and they will put me in jail.’ Once we read the law and understood what they are trying to do, and we filed our lawsuit, we turned the wells back on. There was no malicious intent to anybody, it wasn’t some sort of a game. It was a business decision.”
McClaren, the lawyer for the Town of Avon, said, “When you have an industry like the oil and gas industry, that has been very aggressive, you are eventually going to end up in court.” He added, “I don’t think Avon could have done anything differently to avoid being here today. In this case, Avon stood up and said, ‘We did what we think is right, and we have a right to defend it.'”