Local Government Fracking Regulation
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| Author | : Joel Minor |
| Publisher | : |
| Total Pages | : 0 |
| Release | : 2014 |
| Genre | : |
| ISBN | : |
The recent unconventional oil and gas development boom, better known as the “fracking” boom, is rapidly transforming communities nationwide. Substantial scholarly attention has focused on state and federal fracking regulations, but little has focused on local regulations. Articles that have addressed local government regulation have generally considered only whether local governments can regulate fracking and not how they should do so. But while scholars continue to debate which level of government should regulate fracking, local governments nationwide have already begun enacting regulations. Accordingly, this Article explores how local governments may regulate fracking under state preemption law, using Colorado as a case study. Colorado has a longstanding legal framework for local government oil and gas regulation due to the industry's continuous presence in the state prior to the recent fracking boom. Some eastern states have recently adopted Colorado's approach. But lingering questions remain about the details of local authority, and conflict is brewing as many local governments begin to regulate fracking in their communities. This Article addresses how the fracking boom presents unique challenges to local governments, their regulatory authority under Colorado law, and how they can approach regulation in a manner most likely to survive judicial review. It begins by explaining fracking's socioeconomic and environmental impacts, focusing on impacts in rural Western communities. It emphasizes fracking's socioeconomic impacts, which have been largely overlooked by other legal scholarship, yet constitute the strongest ground for local government regulation. The Article then addresses the legal basis for local government fracking regulation under Colorado law. It highlights that Colorado local governments, especially home rule municipalities, enjoy broad authority over land use matters. Next, the Article critically examines four frameworks for local government regulation -- guides published by two organizations, and ordinances already enacted in several Colorado cities. It concludes by advocating that Colorado local governments regulate the fracking boom through land use ordinances targeting the boom's socioeconomic impacts, rather than ordinances that directly regulate fracking or that target the fracking boom's environmental impacts.
| Author | : Sarmistha R. Majumdar |
| Publisher | : Routledge |
| Total Pages | : 284 |
| Release | : 2018-08-29 |
| Genre | : Political Science |
| ISBN | : 1134823509 |
Over the last decade, the oil and gas industry has garnered a lot of support from the United States federal and state governments in the name of energy independence and economic prosperity. More specifically, hydraulic fracturing or fracking is said to not only make the production of affordable energy possible but also reduce emissions of carbon dioxide by substituting coal with natural gas in the utility sector. Behind the façade of many socio-economic and political benefits, the process of fracking causes serious environmental concerns. Dismissing the negative externalities of fracking simply raises the question, to what extent have communities close to fracking sites been adversely impacted by it? In this book, Sarmistha R. Majumdar studies four communities close to fracking well sites in Texas to help illustrate to what extent fracking regulations have been developed in Texas and how effective these regulations have been in safeguarding the interests of individuals in local communities amidst the lure of economic gains from the extraction of oil and natural gas from shale formations. Majumdar has developed a model to show stage by stage community actions to regain their quality of life and the consequences of their actions, if any, on state and local regulations and ordinances, and the oil and gas industry. This book will be an important resource for scholars of environmental and natural resource politics and policy in the United States.
| Author | : John R. Nolon |
| Publisher | : |
| Total Pages | : 0 |
| Release | : 2015 |
| Genre | : |
| ISBN | : |
Advocates for the gas drilling technology known as hydraulic fracturing, or fracking, argue that it will bring significant economic benefits to the private and public sectors. Its opponents dispute these claims and point to significant environmental and public health risks associated with fracking - risks that must be considered in adopting government regulations needed to protect the public interest. One of the many issues raised by fracking is which level of government should regulate which aspects of the practice. This debate is complicated by the fact that the risks associated with fracking raise concerns of federal, state, and local importance and fit within existing regulatory regimes of each of these levels of government. This Article begins by describing the limited aspects of fracking that are currently regulated by the federal government, which leaves many of the risks unaddressed, opening the door for state and local regulation. This Article describes the legal tension between state and local governments in regulating fracking in the four states that contain the immense Marcellus shale formation. Its particular focus is on court decisions that determine whether local land use regulation, which typically regulates local industrial activity, has been preempted by state statutes that historically regulate gas drilling operations. This investigation suggests that the broad scope and durability of local land use power as a key feature of municipal governance tends to make courts reluctant to usurp local prerogatives in the absence of extraordinarily clear and express language of preemption in state statutes that regulate gas drilling. The Article concludes with an examination of how the legitimate interests and legal authority of all three levels of government can be integrated in a system of cooperative governance.
| Author | : Kevin J. Lynch |
| Publisher | : |
| Total Pages | : 0 |
| Release | : 2022 |
| Genre | : |
| ISBN | : |
As the use of fracking has spread during the recent oil and gas boom, inevitable conflicts have arisen between industry and its neighbors, particularly as fracking has moved into densely populated urban and suburban areas. Concerned over the impacts of fracking - such as risks to health and safely, diminished property values, air and water pollution, as well as noise, traffic, and other annoyances - many people have demanded a government response. Government regulation of fracking has struggled to catch up, although in recent years many state and local governments have taken steps to reduce the impacts of fracking in their communities. This article focuses on government restrictions in New York and Colorado, two of the key battlegrounds in the fight over fracking. New York recently prohibited fracking across the entire state, after several towns had enacted their own bans. In Colorado, the people have used the ballot initiative process to enact restrictions on fracking directly. The industry has responded not only with public relations spending to improve the fracking's damaged reputation, but also legal challenges to these efforts to rein in oil and gas development. In addition to suing local governments, often arguing they do not have authority to regulate fracking, industry threatens to bring costly takings claims for compensation due to alleged economic harms. This Article examines the numerous legal and factual issues that should make it difficult for industry to succeed on fracking/takings claims. First, regulation of fracking, even including outright bans, can almost always be defended as necessary to prevent a nuisance or other background principle of law that justifies government regulation. Even if a nuisance defense could be overcome, industry would have difficulty proving that regulation has destroyed all economic value in their property, unless courts take a narrow view of property that would highlight the arbitrary nature of the “denominator problem.” When fracking/takings claims are considered under the default balancing of the Penn Central case, takings are unlikely to be found except in rare outlier cases. Finally, because requiring governments to pay compensation in fracking/takings cases would likely create a windfall for industry, particularly if the oil and gas eventually is extracted in the future, courts should resist the temptation to rule against government restrictions to protect public health, safety, and the environment.
| Author | : Grace Heusner |
| Publisher | : |
| Total Pages | : 0 |
| Release | : 2017 |
| Genre | : |
| ISBN | : |
As recent examples in Texas and Colorado have shown, if local governments ban fracking, they risk pushback from state governments. This pushback, in turn, can result in preemption making an outright local ban on fracking self-defeating because it could ultimately result in less local control over the impacts of hydraulic fracturing. Given this potentially self-defeating nature of local fracking bans, local governments should address the impacts of fracking through more traditional local governance mechanisms that do not pose as great a risk to local authority. On this premise, this Article seeks to make the case for the importance of, and authority for, local leadership of fracking governance. We present an overview of the federal and state laws that address fracking and describe the traditional scope of local land use authority. We next present a list of the most salient local impacts of hydraulic fracturing, including a description of the methods we employed to catalogue these local impacts. Finally, this Article concludes with a series of case studies that demonstrate different local governance mechanisms. Because of significant gaps in the state and federal regulatory apparatus, opportunity exists for local governments to craft regulatory and non-regulatory structures that meet their communities' needs. We believe that with more comprehensive information about the impacts of fracking, as well as regulatory and non-regulatory tools that local governments can employ, municipalities will be better able to enact policies that withstand legal scrutiny and reflect local interests.
| Author | : Hannah Jacobs Wiseman |
| Publisher | : |
| Total Pages | : 0 |
| Release | : 2015 |
| Genre | : |
| ISBN | : |
In The Political Economy of Local Vetoes, 93 Texas Law Review 351 (2014), David Spence asks how we can regulate drilling and hydraulic fracturing for oil and gas in a manner that ultimately maximizes net benefits -- assessing whether state or local veto authority over oil and gas development will achieve this result. Although Spence does not directly invoke the Calabresi-Melamed framework, his arguments fit rather neatly within it. One way to achieve an efficient level of oil and gas development, Spence suggests, is for states to use some of their fracturing-related surplus to compensate local governments for the concentrated costs they experience. This is what Calabresi and Melamed would call a liability rule. Spence focuses instead on what one could label as a property rule -- whether giving local or state governments the authority to ban oil and gas development and fracking will best promote Coasean bargaining. Spence concludes that in light of strong preferences at the local level, giving local governments veto power will lead to more bargaining, and thus more efficient outcomes, than will state-level decision making. Spence's Article is thorough and persuasive, but I would slightly reconstruct his account in three modest ways. First, when focusing on the question of whether states should preempt local governments, we must not forget other actors. Fracking generates benefits and costs not fully internalized by local governments and oil and gas producers, and state, regional, and federal regulatory actors need a voice in the bargaining process. Second, we must look more closely at the role of regulation -- not just an up or down veto -- by local governments. Local governments understand the concentrated impacts of oil and gas development, and, rather than fully banning this development, many cities and towns have regulated the practice in a sophisticated manner. It is also important to more closely consider the transaction costs that local governments and producers face in bargaining. And finally, as academics and courts continue to wrangle over the proper allocation of fracking entitlements, we must turn to the Coasean scheme that Spence only briefly addresses -- the scheme that very few states have adopted, in which states compensate local governments for their losses -- while waiting for an improved governance solution.
| Author | : Rachael Rawlins |
| Publisher | : |
| Total Pages | : 0 |
| Release | : 2014 |
| Genre | : |
| ISBN | : |
In the last decade hydraulic fracturing for natural gas has exploded on the Barnett Shale in Texas. The region is now home to the most intensive hydraulic fracking and gas production activities ever undertaken in densely urbanized areas. Faced with minimal state and federal regulation, Texas cities are on the front line in the effort to figure out how best to balance industry, land use, and environmental concerns. Local governments in Texas, however, do not currently have the regulatory authority, capacity, or the information required to close the regulatory gap. Using the community experience on the Barnett Shale as a case study, this article focuses on the legal and regulatory framework governing air emissions and proposes changes to the current regulatory structure. Under both the state and federal programs, the regulation of hazardous air emissions from gas operations is based largely on questions of cost and available technology. There is no comprehensive cumulative risk assessment to consider the potential impact to public health in urban areas. Drilling operations are being conducted in residential areas. Residents living in close proximity to gas operations on the Barnett Shale have voiced serious concerns for their health, which have yet to be comprehensively evaluated. Given the complexity of the science, and the dearth of clear, transparent, and enforceable standards, inadequate studies and limited statistical analysis have been allowed to provide potentially false assurances. The politically expedient bottom line dominates with little attention paid to the quality of the science or the adequacy of the standards. Determining and applying comprehensive health-based standards for hazardous air pollutants has been largely abandoned at the federal level given uncertainties in the science, difficulties of determining and measuring “safe” levels of toxic pollutants, and the potential for economic disruption. Neither the state nor the federal government has set enforceable ambient standards for hazardous air pollutants. Identifying cumulative air pollution problems that may occur in urban areas, the State of California has called upon local governments to identify “hot spots” and to consider air quality issues in their planning and zoning actions. In Texas, however, preemption discussions dominate the analysis. Any local government regulation that might provide protection from toxic air emissions otherwise regulated by the State must be justified by some other public purpose. Texas should consider authorizing and encouraging local level air quality planning for industrial activities, similar to what California has done. Care should be taken to separate these facilities from sensitive receptors and “hot spots” that may already be burdened with excessive hazardous air emissions. Given the difficulty of the task, there is also an important role for the state and federal governments in working to establish ambient standards for hazardous air pollutants, as well as standards for health based assessment and public communication. The uncertainty inherent in any of these standards should be made clear and accessible to local governments so that it may be considered in making appropriate and protective land use decisions. Texas should consider allowing local governments to have the power to establish ambient air quality standards, emissions limitations, monitoring, reporting, and offsets for hazardous air pollutants, following the model applied to conventional air pollutants pursuant to the federal program.
| Author | : |
| Publisher | : |
| Total Pages | : 82 |
| Release | : 2010 |
| Genre | : Natural gas |
| ISBN | : |
| Author | : Erica Brown |
| Publisher | : |
| Total Pages | : 0 |
| Release | : 2015 |
| Genre | : |
| ISBN | : |
This report presents the views of Michigan and Pennsylvania citizens on issues related to the extraction of natural gas through hydraulic fracturing, which is more commonly known as “fracking.” Hydraulic fracturing and new horizontal drilling techniques are creating significant opportunities to expand natural gas production across the United States. The absence of comprehensive federal legislation regarding hydraulic fracturing has placed the regulation of unconventional gas drilling primarily within the purview of state and local governments. This report examines public opinion in Michigan and Pennsylvania on a series of issues concerning the impact of fracking on the economy, environmental protection, and information disclosure. Pennsylvania and Michigan have been selected as the focus of this report because they represent states with varied levels of hydraulic fracturing within their borders. Pennsylvania has emerged as one of the nation's leaders in terms of the number of hydraulic fracturing sites with extensive drilling occurring in the commonwealth, and also has high levels of public debate and policy development related to this issue. Conversely, fracking has just begun to develop on a large scale within Michigan with corresponding public engagement around the matter in its early stages. These differences present a valuable opportunity to examine where the public in these two states stands on an array of issues related to fracking.
| Author | : Daniel Raimi |
| Publisher | : Columbia University Press |
| Total Pages | : 255 |
| Release | : 2017-12-26 |
| Genre | : Business & Economics |
| ISBN | : 0231545711 |
Over roughly the past decade, oil and gas production in the United States has surged dramatically—thanks largely to technological advances such as high-volume hydraulic fracturing, more commonly known as “fracking.” This rapid increase has generated widespread debate, with proponents touting economic and energy-security benefits and opponents highlighting the environmental and social risks of increased oil and gas production. Despite the heated debate, neither side has a monopoly on the facts. In this book, Daniel Raimi gives a balanced and accessible view of oil and gas development, clearly and thoroughly explaining the key issues surrounding the shale revolution. The Fracking Debate directly addresses the most common questions and concerns associated with fracking: What is fracking? Does fracking pollute the water supply? Will fracking make the United States energy independent? Does fracking cause earthquakes? How is fracking regulated? Is fracking good for the economy? Coupling a deep understanding of the scholarly research with lessons from his travels to every major U.S. oil- and gas-producing region, Raimi highlights stories of the people and communities affected by the shale revolution, for better and for worse. The Fracking Debate provides the evidence and context that have so frequently been missing from the national discussion of the future of oil and gas production, offering readers the tools to make sense of this critical issue.
