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Tuesday, April 29, 2014

Fershee on Zoning and Hydraulic Fracturing

FersheeJoshua Fershee (West Virginia) has posted Facts, Fiction, and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth of Pennsylvania (West Virginia Law Review) on SSRN.  Here's the abstract:

Hydraulic fracturing for oil and natural gas is perhaps the most polarizing energy issue in the United States and around the world, and Pennsylvania has emerged as an example of passionate views both for and against hydraulic fracturing for shale gas. To limit local government restrictions on gas drilling, the Pennsylvania legislature passed Act 13 in September 2012, and the Act largely eliminated the ability of local governments to restrict oil and gas operations through zoning. The Pennsylvania Supreme Court overturned Act 13 in December 2013.

This Article reviews how Act 13 came to be, highlights the key provisions of the Act, and explains the various rationales used by the court to overturn the Act. The Article then takes a critical look at the Pennsylvania Supreme Court’s reliance on unsupported facts and illustrates how even well-meaning assumptions applied to highly complex issues can cause more harm then good. The Article further argues that the court did not sufficiently analyze the full scope of environmental impacts of Act 13 and the related natural gas output that would accompany it. After the court decided to engage in the environmental analysis (rather than deferring to the legislature on policy matters), a detailed fact-gathering and analysis process was warranted to avoid adopting common misconceptions as legal facts.

To be clear, this Article does not argue that the court was wrong to question the potential environmental impacts of hydraulic fracturing. Instead, it argues that the court’s decision failed to consider the full host of potential environmental risks related to energy extraction and production, which provide necessary context when considering the proper way to manage the corpus of the public trust and enforce the environmental protections mandated by the Pennsylvania Constitution. The Article cautions that a majority of the court appears to have relied on “fracking distractions,” which are real social or environmental risks that are incorrectly, and inappropriately, linked with hydraulic fracturing. Despite the court’s laudable focus on environmental protection, the Article also argues that the decision could cause unintended problems beyond the natural gas industry, unless future courts read the case narrowly. The Article concludes that a more tailored version of Act 13 may be feasible and that a renewed commitment to determining and analyzing the full complement of pertinent facts related to hydraulic fracturing is warranted and necessary to minimize potential environmental and social harms and to maximize potential benefits.

http://lawprofessors.typepad.com/property/2014/04/fershee-on-zoning-and-hydraulic-fracturing.html

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