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Who Writes New York's Fracking Regulations

Who Writes New York's Fracking Regulations

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Chinapeake does

Chinapeake does

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Categories:Business/Law
Published by: James "Chip" Northrup on Jul 01, 2012
Copyright:Attribution Non-commercial

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01/29/2014

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How the Gas Industry Writes New York’s Shale Gas Regulations
On March 26, 2008, Tom West, his law partner and as many as seven Chesapeake
Energy employees met with Jack Dahl of the DEC to present Chesapeake’s proposal
to increase the state well spacing for shale gas wells, and to reduce the set back of gas wells within that unit from the property lines. Simply put, it is better for thedriller for the spacing unit to be as large as possible, since that enables them to holdmore acreage with one well in what amounts to an acreage speculation. It is alsobetter for the driller for the gas well setback to be as close as possible to theproperty line.Conversely, the landowner is generally worse off with a large spacing unit, since that enables the driller to hold more acreage with the least number of wells, which canequate to lower royalties for the landowner. And the neighbors are worse off if thegas well is closer to their property line.Shown below is what the law was before Chesapeake re-wrote it, what Chesapeakeproposed to Jack Dahl and Allison Crocker of the DEC, and what the final proposedlaw was. See page 5 of this list of communiqués between West and DEC staff.
1
In a
nutshell, Chesapeake wrote New York’s shale gas spacing and g
as well setback law.There is no indication that the DEC staff did anything but take dictation.
New York regulations prior to 2008
Less than 4,000 feet deep 80 acres
660’
set back 4,000
6,000 feet 160 acres
660’
 6,000
8,000 feet 320 acres
1,000’
> 8,000 feet deep 640 acres
1,500’
 
Chesapeake’s Proposed Regulations
640 acres
330’
 
New DEC proposed regulations
 
2
640 acres
330’
 After 2008, as gas prices fell, Chesapeake scrambled to hold acreage, arguing
 forcemajeure
to extend its leases in New York 
3
and attempting to get the well spacing
1
2
3
 
doubled, to 1,280 acres, or two square miles. IOGA pushed for such a doubling in aSeptember 11, 2011 letter to the DEC :
“Because New York law limits the size of spacing units for shale wells up to
640 acres, it will be the practice of industry to layout back-to-back units witha common well pad for both units thereby draining areas up to 1280 acres
(two square miles).”
4
 The drillers subsequently persuaded State Senator Mark Grisanti to attempt toincrease the spacing unit for one well up
to 2 square miles
.
5
 Perversely, such large well spacings on horizontal wells exacerbate the abuse of compulsory integration to coerce non-consenting landowners into participating inwells.
New York’s compulsory integration law was
for all intents and purposeswritten by
Chesapeake’s lobbyist,
Tom West, as evidenced by his correspondencewith DEC staff attorney Allison Crocker in 2005, pages 58
103.
6
 Consequently, as amended by West and Crocker, New York now has the worst compulsory integration law in the United States, as practiced by the DEC.
7
New
York’s DEC
, in league with West 
as Anschutz’s lawyer, is one of the few state
agencies that has compelled a homeowner into participating in a gas well.
8
If theWest/DEC compulsory integration law is applied to horizontal wells, it will betantamount to private eminent domain
 
at Chesapeake’s behes
t, since horizontallaterals only drain th
e area they’re under, not adjacent property.
9
Invokingcompulsory integration is unprecedented elsewhere, but is not beyond the brief for
Chesapeake’s stenographers at the DEC.
Mercifully, the courts are less impressed with Mr. West, as a close reading of the
Middlefield 
decision indicates.
10
 
Not only were they not persuaded, it’s not clear that 
they believed a word he said on home rule. In contrast, his collaborators at the DEC
bought Chesapeake’s line
on the matter in whole cloth, even though home ruleapplies to gas wells in both Oklahoma and New York.
11
 As the DEC goes through the motions of reviewing non-industry comments on theproposed SGEIS, they have sent out their final drafts to the gas industry, in order to
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