Michele Hallowell contributed to this post.
Environmental and community groups continue to assert home rule authority, as well as seek additional authority, in efforts to regulate or ban oil and gas drilling that uses hydraulic fracturing. As recent events in West Virginia demonstrate, these groups face an uphill legal battle. Most states have long regulated the oil and gas industry under state statute, and courts have generally upheld this scheme as preventing municipalities (and sometimes counties) from duplicative regulation. This history, however, does not appear to have slowed the growing movement. For example, the Community Environmental Legal Defense Fund, an organization leading a local fracking ban movement in Pennsylvania, acknowledges that the chances in court are slim. The group’s objective, rather, is to slow the pace of drilling and draw the process out into the open, forcing companies and the courts to make public decisions.
The movement is particularly active in the Marcellus, where drilling and “fracking” has become a leading environmental cause. As reported recently by Mary Esch in the Associated Press, 54 communities in upstate New York have already placed moratoria on drilling, and similar ordinances have been attempted in Pennsylvania and West Virginia—the latter having been ruled unlawful in August. Legislation has also been introduced in New York to clarify and strengthen municipalities’ authority to regulate the industry. Even in places like Colorado, where oil and gas drilling and fracking have long been a part of life, communitiesare looking to their home rule and Constitutional authority to curtail or ban drilling.
The notable uptick in local efforts to regulate or ban oil and gas drilling presents an immediate challenge for the industry. When taken in the aggregate, municipal initiatives nationwide may present one of the most significant challenges for the oil and gas industry. Companies will need to address challenges not only in the legislatures and the courts, but perhaps more importantly, in the communities in which they operate.
To help understand where such local efforts may prove most fertile, we have put together a chart, which summarizes for the key oil and gas states, the existing municipal and county home rule authority structure, notable constitutional provisions which may aid in opponents’ legal or legislative challenges, as well as relevant case law and other notable ordinances and regulations.
Please contact any of the attorneys associated with this blog for assistance in addressing the myriad challenges presented by local initiatives to ban fracking.