Monday, April 25, 2016

Zoning’s Centennial, Part 16: Fracking as an Industrial Use under Zoning: A Series by John R. Nolon

Part 16

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Fracking as an Industrial Use under Zoning


Is there currently a more controversial land use, environmental, and economic issue in America than fracking? Just listen to the ongoing debates:

“Fracking is great!”

“No, it’s terrible!”

“It will mitigate climate change.”

“No, it won’t.”

“Fracking cannot be made safe, even through proper regulation.”

“Yes, it can.”

“Even if it can be done safely, don’t go there, because it will take our focus away from promoting renewables.” 

To quote Kurt Vonnegut: “So it goes.”

Meanwhile, fracking is happening and local governments are subjected to many of its associated risks. They either need to act, or know - clearly and convincingly - why they should not. The federal government has stopped far short of comprehensive regulation of fracking; the states’ regulations range from fair to poor, sometimes preempting local regulation but most often sharing regulatory authority over land use impacts. 

The stakes couldn’t be higher. “Think about it,” as the fracking industry advertisement says; does the federal or state government, as part of their fracking regulations, control  any of these local impacts?

  • Pressures on housing supply and costs;
  • Radical changes in community character;
  • Loss of habitat and species;
  • Deterrent effects on local growth;
  • Impacts on recreational resources;
  • Effects on agricultural land and operations;
  • Causation of soil erosion and sedimentation;
  • Creation of visual blight; or
  • Increases in the cost of public health services.

The Land Use Law Center and our partners at the Yale School of Forestry and Environmental Studies have examined dozens of local fracking regulations and identified three dozen local impacts and risks found in the purposes section of their laws. With respect to a few of these impacts, federal or state regulations may require some level of mitigation, but these fall far short of controlling highly specific impacts felt in existing neighborhoods and on local environmental assets. Federal and state regulations are indifferent, as well, to the land use objectives of the comprehensive plan in any given community.

This indifference and the preemption of local control of fracking in some states are hard to understand. Why should this be more complicated than regulating any other intense industrial use? (Cement manufacturing comes to mind.) Why don’t we allow it in industrial zones and subject it to a number of conditions as a specially permitted use? If imposing conditions can’t fully protect local interests, why can’t the fracking application be denied? Why should this one impactful land use be treated differently?

Consider that zoning is one of several responsibilities that local governments are delegated by their state legislatures. Think of these responsibilities as a three-legged stool. First, zoning determines how property is used and developed, and therefore dictates how valuable it will be. Second, localities have the power to impose property taxes on the assessed value of the land that they regulate. Third, municipalities are expected to use property tax revenues to fund municipal operations, provide capital infrastructure, and carry on the business of local government. 

Given the complexity, comprehensiveness, and utility of these linked powers and duties, the judiciary is rightfully cautious about implying that state statutes that regulate fracking are intended by the legislature to inhibit local prerogatives. The importance of local land use regulation and the intertwined functions of local governments raise a presumption against preemption, in my view, that must be overcome to convince most state judges that their legislatures intended to preempt local zoning. Judges are inclined to say that if the state legislature passed statutes integrating zoning, taxation, and expenditure, why would they, in the case of fracking, remove one leg of the stool?

What has happened in Pennsylvania is instructive. Under previous state oil and gas law, the state courts had determined that local governments could regulate but not prevent fracking under local zoning. Following these judicial decisions, the state legislature adopted Act 13, which preempted local control. The Act required local governments to include fracking as a permitted use in all zoning districts. This Act was invalidated by Robison v. Commonwealth, which held that it failed to protect neighboring property owners from harm and created irrational land use classifications. The power of municipalities to adopt comprehensive plans, to separate land uses through zoning, and the derivative rights of land owners, in the Robinson court’s view, trumped state oil and gas legislation that, on its face, preempted local regulation.

The court explained that zoning power was but “an extension of the concept of public nuisance which protects owners from activities that interfere with use and enjoyment of their property,” citing the seminal Village of Euclid v. Ambler Realty case. Essentially, the Act required municipalities to create zoning incompatible with their comprehensive plans; if mining and gas operations were to be included in all zones, as the Act required, zoning ordinances would inherently not comport with their comprehensive plans Thus, the court found, the state’s interest in regulating fracking processes sits in direct conflict with local zoning interests. 

For more information, see John R. Nolon & Steven E. Gavin, Hydrofracking: State Preemption, Local Power, and Cooperative Governance, 63 Case W. Res. L. Rev. 995 (2013); John R. Nolon & Victoria Polidoro, Hydrofracking: Disturbances Both Geological and Political: Who Decides?, 44 Urb. Law. 507 (2012).  See also, Pace / Yale Land Use Collaborative launches beta version of online fracking governance tool for local governments.  See also, Grace Heusner, Allison Sloto & Joshua Ulan Galperin, Defining and Closing the Hydraulic Fracturing Governance Gap, Harvard Envtl. L. Rev. (forthcoming 2016).


Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning

Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

Part 9: Mixed Signals: Exclusionary Zoning and Fairness

Part 10: The Emergence of the Law of Sustainable Development

Part 11: Designing Density

Part 12: Green Infrastructure

Part 12B: Land Use and Energy Conservation

Part 14: Transit Oriented Development

Part 15: Zoning in Solar and Clean Energy

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