Hydrofracking: state preemption, local power, and cooperative governance.

• Author: Nolon, John R.
• Position: The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom

ABSTRACT

Advocates for the gas drilling technology known as hydraulic fracturing, or hydrofracking, argue that it will bring significant economic benefits to the private and public sectors. Its opponents dispute these claims and point to significant environmental and public health risks associated with hydrofracking--risks that must be considered in adopting government regulations needed to protect the public interest. One of the many issues raised by hydrofracking is which level of government should regulate which aspects of the practice. This debate is complicated by the fact that the risks associated with hydrofracking raise concerns of federal, state, and local importance and fit within existing regulatory regimes of each of these levels of government. This Article begins by describing the limited aspects of hydrofracking that are currently regulated by the federal government, which leaves many of the risks unaddressed, opening the door for state and local regulation. This Article describes the legal tension between state and local governments in regulating hydrofracking in the four states that contain the immense Marcellus shale formation. Its particular focus is on court decisions that determine whether local land use regulation, which typically regulates local industrial activity, has been preempted by state statutes that historically regulate gas drilling operations. This investigation suggests that the broad scope and durability of local land use power as a key feature of municipal governance tends to make courts reluctant to usurp local prerogatives in the absence of extraordinarily clear and express language of preemption in state statutes that regulate gas drilling. The Article concludes with an examination of how the legitimate interests and legal authority of all three levels of government can be integrated in a system of cooperative governance.

CONTENTS INTRODUCTION: HYDROFRACKING RAISES JURISDICTIONAL ISSUES I. LIMITED SCOPE OF CURRENT FEDERAL REGULATIONS A. Safe Drinking Water Act B. Clean Water Act C. Clean Air Act D. Comprehensive Environmental Response, Compensation, and Liability Act E. Resource Conservation and Recovery Act F. Endangered Species Act G. Toxic Substances Control Act II. NEW YORK: LOCALITIES WIN ROUND ONE, ESCAPING PREEMPTION III. PENNSYLVANIA: PREEMPTION THWARTED IV. WEST VIRGINIA AND OHIO: HYDROFRACKING LAW IN LIMBO A. West Virginia Gas Regulation and Local Land Use Control B. Ohio V. COOPERATIVE GOVERNANCE: STATE-LOCAL COLLABORATION INTRODUCTION: HYDROFRACKING RAISES JURISDICTIONAL ISSUES

Hydraulic fracturing, or hydrofracking, is a gas well stimulation and extraction technique designed for areas underlain by large shale formations found often a mile or more below the surface. Vertical hydrofracking has been done for decades, but relatively recent technology enables directional drilling, which allows the drill stem and borehole to follow the horizontal structure of the shale formations and proceed thousands of feet to exploit gas reserves far from the well head. (1) In horizontal hydrofracking, millions of gallons of water are pumped at high pressure into the well bore--water that contains thousands of gallons of proprietary chemical slurries and a propping agent, such as sand. (2) The pressure creates fractures in the hydrocarbon bearing shale and the propping agent keeps the fissures open. (3) This releases the natural gas that the shale contains and allows it to be pumped to the surface. (4) Some of the fluid mixture, known as "flowback water," returns to the surface, where it is either trucked off site to injection wells or released into water treatment facilities. (5) This raises complications in some states, particularly those in the Marcellus region, where the geology is not favorable to injection wells. (6) This, in turn, leads to a search for appropriate injection wells in other states and for treatment plants that can handle this wastewater, which are often in short supply. (7) Horizontal hydrofracking operations also emit volathe organic compounds and methane during the completion of the wells, raising both public health and climate change concerns. (8) Additional air pollution is caused by the thousands of truck trips that each well may generate--trips that require improved or new roads, that can cause landscape fragmentation, and that create congestion, noise, and the need for expensive road repairs, thus burdening local tax payers. (9)

Advocates for the gas drilling industry argue that hydrofracking will bring significant economic benefits to the private and public sectors. (10) The opponents of hydrofracking dispute these claims and point to environmental and public health risks associated with hydrofracking--risks that must be considered in government regulation needed to protect the public interest. The debate on both sides yields differing projections of supplies, jobs created, tax revenues, water needed, wastewater created, and the extent of groundwater and surface water pollution. Hydrofracking's proponents and opponents argue over the effect of hydrofracking on community character, climate change, the nation's balance of payments, and whether or not it will help the United States become less dependent on oil imports or retard the development of renewable energy sources.

Those who object to hydrofraeking point also to a variety of environmental risks that they fear are associated with the technology: air pollution, groundwater depletion and contamination, surface-water pollution, soil erosion and sedimentation, visual blight, noise pollution, road congestion and destruction, and the deterioration of community character. (11) They worry as well about a variety of public health concerns, including escaped methane and other volatile organic compounds, exposure to ground-level ozone causing respiratory illness, chemical fires, lung disease in workers caused by the inhalation of silica dust, benzene pollution of the air near drilling sites, particulate inatter from heavy trucks travelling on dirt roads, personal injury from seeping hydrochloric acid and solvents, earthquakes, and diesel fuel and toxic chemicals in ground water. (12)

One of the many issues raised by hydrofracking is which level of government should regulate which aspects of the practice. This debate is complicated by the fact that the benefits associated with hydrofracking are national, regional, statewide, and local in nature and that the risks associated with hydrofracking raise concerns that are within the existing legal jurisdiction of federal, state, and local government. These realities lead, in turn, to further debates about which level of government should have the primary role in regulating hydrofracking; indeed, some argue that the federal government should fully preempt the field of hydrofracking regulation, others argue that states should preempt local regulation, and some see benefits in the involvement of all three levels of government in regulating the technology. (13)

If the advocates of either federal or state preemption prevail, the historical role of local governments in controlling local land uses and their impacts will be diminished, if not extinguished. (14) Local governments are created by and derive their powers from the state. They get the power to adopt land use plans and regulations through state planning and zoning enabling acts and home-rule statutes. If the state legislature expressly and in certain terms preempts using that delegated power in order to promote a state interest such as gas exploration, the power of local government is clearly trumped. Where state legislatures do not expressly preempt local zoning, or where their intention to do so is ambiguous, it is the job of the courts to determine whether localities are preempted. Courts may find that, by implication, state legislatures intended to preempt local power. Implied preemption may be based on the court finding direct conflicts between general state legislation and local zoning controls (conflict preemption) or by finding that the state legislative scheme is so comprehensive that it intended to occupy the field (field preemption).

In most states, zoning is one of several powers delegated to local governments to serve local and state interests. Zoning determines how property is used, developed, and how valuable it will be; localities have the power to impose property taxes on the land they regulate and they are expected to use those revenues to fund municipal operations, provide municipal infrastructure, and carry on the business of local government, which benefits local citizens and the state in multiple ways. Given the complexity, comprehensiveness, and utility of these linked powers and duties, the judiciary is rightfully cautious about implying that state regulatory enactments, such as those regulating hydrofracking, were intended by the legislature to inhibit local prerogatives. The importance of local land use regulation leads to a presumption against preemption that must be overcome to convince most state judges that, in adopting oil and gas laws, state legislatures intended to preempt local zoning.

This Article begins in Part I by describing the aspects of hydrofracking that are currently regulated by the federal government, which leaves many of the risks untouched for future federal regulation or for state and local governments to consider. Parts II, III, and IV describe the legal tension between state and local regulation in the four states that contain the immense Marcellus shale formation: New York, Pennsylvania, West Virginia, and Ohio. These Parts focus on court decisions that determine whether local regulation to protect the interests, typically governed by land use planning and zoning, have been preempted by state law delegating regulation of the gas industry to one or more state agencies. This investigation suggests that the broad scope and durability of local land...