Fracking Insider Readers: We are pleased to bring you Volume 30 of our State Regulatory Roundup, including updates in Minnesota, New York, and Pennsylvania. As we explained in earlier volumes, we designed the Roundup to provide quick overviews on state regulatory activity. If you have any questions on any of these summaries, please do not hesitate to ask.
Minnesota – The Minnesota Environmental Quality Board (EQB) has offered model standards to be used by townships, cities, and counties to regulate silica sand mining, processing, and transportation. The hydraulic fracturing revolution has rapidly increased demand for silica sand, which is used as a proppant to keep induced fissures open. The state legislature requested EQB issue the draft standards to assist localities in managing the increase in silica sand mining. The proposed standards specify likely air pollutants and how to measure their concentration levels, and describe potential impacts on area waters, including reduced water availability for wells and degradation of aquatic wildlife habitat. The comment period on the proposed standards runs through January 13th, with final standards expected to be issued in February.
New York – The response brief filed by the defendant in a case with major implications for hydraulic fracturing argues that state law does not preempt a local zoning ordinance that prohibits fracking. The town of Dryden, which is being represented by EarthJustice, maintained that the state Oil, Gas and Solution Mining Law does not expressly preempt the town ordinance. It also asserted that the court has consistently upheld local land use regulation against preemption claims in similar cases regarding the state Mined Land Reclamation Law. The case, Norse Energy Corp. USA v. Dryden, N.Y., is being heard before the state’s highest court, the New York Court of Appeals. The results of this case along with a second one concerning a local ban in Middlefield are expected to determine the future of local preemption in the state, where approximately 200 local ordinances against the practice have been enacted. As noted below, the highest court in Pennsylvania recently upheld the ability of local municipalities to enact laws banning oil and gas activity. While the Pennsylvania decision was based on particular provisions of the Commonwealth’s Constitution and laws, and certainly not precedential in New York Courts, EarthJustice and others will undoubtedly try to use it to persuade the court.
Pennsylvania – The Pennsylvania Supreme Court issued its decision on December 19th in Robinson Township, et al. v. Commonwealth of Pennsylvania, a case that merged a number of constitutional challenges to Act 13 of 2012. Among other provisions, this amendment to the state Oil and Gas Act required municipal zoning ordinances to allow oil and gas infrastructure with appropriate setback requirements and noise restrictions, prohibited municipalities from treating oil and gas operations differently from other land uses, and imposed time limits for acting on applications. The effect was to implement a statewide uniform land use regime for oil and gas development. The act received support from oil and gas operators and was championed by Gov. Tom Corbett (R) as a necessary catalyst for energy investment in the state, but drew an immediate legal challenge from a handful of municipalities and environmental groups that objected to the preemption of local ordinances. A suit was brought in the Commonwealth Court in 2012, which, by a 4-3 majority, held Act 13 to be unconstitutional. On appeal, the Pennsylvania Supreme Court issued a 4-2 decision affirming the Commonwealth Court’s view that the statewide zoning rules are unconstitutional, thereby making implementation of cohesive statewide oil and gas land use regulations extremely difficult. The Commonwealth has asked the Supreme Court to reconsider its decision, and, at the same time, is considering legislative fixes aimed at protecting its coherent state-wide regulatory strategy from being disaggregated into a patchwork of local regulations that could undermine regulatory certainty and chill energy investment.