Wednesday, January 21, 2015
In my recent article, Local Regulation of Hydraulic Fracturing, 117 W.Va. L. Rev. 593 (Winter 2014), I review recent case law in New York, Pennsylvania, Colorado and West Virginia that delves into the extent of local authority to regulate hydraulic fracturing. I also list zoning and planning regulations and tools that may properly be implemented by local governments, and tools that should be reserved to state governments.
I conclude that the New York and Pennsylvania courts miss the mark. New York courts fail to distinguish between reasonable regulation of hydraulic fracturing and outright bans of the practice. Some questionable precedents in that state, one of which even a lower court labeled as "flawed", but felt obligated to follow, have skewed the results. New York also fails to acknowledge that bans are likely preempted, particularly where state statutes seek to prevent waste and protect correlative rights. Bans contravene both of those goals.
Pennsylvania oddly perverts the notion of Dillon's Rule to strike down a state regulation limiting local government action. My colleague, Joshua Fershee, perceptively breaks down the Robinson decision in "Facts, Fiction and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth of Pennsylvania, 116 W.Va. L. Rev. 819 (Spring 2014). My analysis focuses on the Dillon's Rule issue, which the dissenting opinion correctly explains. Professor Fershee delves more deeply into that case, for those that are interested.
I conclude that, while local governments should not be able to ban hydraulic fracturing, many tools exist for local governments to employ. These tools include setbacks, common in zoning ordinances, impact fees and “adequate public facilities ordinances.” Zoning ordinances cover issues like noise, light and other visual impacts, road damage, blasting, dust, traffic, compatibility of the activity to nearby property uses, impact of the activity on property values in the area, adequate off-site infrastructure, adequate services (such as police and fire protection), affordable housing, the general health, the safety of the community, odors, potential groundwater contamination, methane emissions, habitat fragmentation, and degradation of environmentally sensitive areas. Local governments should not overreach their authority and infringe upon legitimate state interests, however.
I am presently working on a follow-up to that article, examining the environmental justice ramifications of the present state of affairs. Specifically, wealthy communities, like Santa Fe County, New Mexico can hire costly consultants to draft ordinances that purport to allow hydraulic fracturing, but present so many hurdles that the practice is essentially banned. On the other hand, poor communities, like Mora County, New Mexico, must rely on activist organizations that draft "Rights-Based Ordinances" that ban hydraulic fracturing, and are highly unlikely to withstand legal challenge. Although these organizations draft the ordinances free of charge, and sometimes will even represent the community in the court challenge, the communties are not protected from possible sanctions for frivolous court pleadings. In the end, wealthy communities can exclude LULUs like hydraulic fracturing, while poor communities will bear the burden. Although this circumstance is not new, the contrasts seem to be especially dramatic with respect to hydraulic fracturing.