Sunday, September 23, 2012

Gov. Christie vetoes hydraulic fracturing wastewater ban citing dormant commerce clause

Back in January I noted that there was a hydraulic fracturing issue likely to spring up over time:  whether state bans on inter-state transport of fracturing wastewater would result in dormant commerce clause violations.  The issue has now hit the front page in New Jersey where last week, Gov. Christie explicitly cited the dormant commerce clause as his reason for vetoing a bill passed by New Jersey's legislature that would have banned fracturing wastewater from being deposited in New Jersey.  Gov. Christie's reasoning is here, noting that New Jersey is unlikely to ever be a fracturing state, and so any fracturing wastewater would necessarily come from out of state.  Response from the legislature is here, citing to a New Jersey Office of Legislative Services opinion stating that the law did not violate the dormant commerce clause.  (I was not able to find the opinion on-line immediately, but have requested it from OLS and will post a copy when and if I receive it.)  Will Christie's explicit reference to the dormant commerce clause heighten the constitutional challenges to fracturing wastewater bans?  Might a seemingly obscure dormant commerce clause claim be the first fracturing issue to make its way to the U.S. Supreme Court, whether from New Jersey or another state?  Stay tuned!

Stephen R. Miller

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