Fracking: What is it Costing Us? – Pt. III
by Daniel Quandt
Fracking, a source of national controversy, has been widely publicized, and often vilified. Despite its frequent presence in the national news, it is argued that fracking should not lie solely in the domain of federal regulation.
Instead, local communities are trying to take the lead in restricting the practice.
In this three part series, the Georgetown International Environmental Law Review will explore the controversy surrounding hydraulic fracturing, a practice more commonly known as “fracking.” Part I provides an overview of the history of fracking, and the process involved in the technique. Part II addresses statutory regulation of the practice, at the federal, state, and local levels. Part III delves into the controversy, analyzing the legal challenges to fracking brought in In the Matter of Wallach v. Town of Dryden and Robinson Township v. Commonwealth of Pennsylvania.
Part III: Legal Challenges to Local Bans
In the Matter of Wallach v. Town of Dryden
Predictably, local bans have sparked legal challenges by industry seeking to prevent moratoria from causing further market disruptions. The legality of local hydraulic fracturing bans was recently challenged in the New York case, In the Matter of Wallach v. Town of Dryden. The Supreme Court reached a decision in 2012, which was affirmed by the Supreme Court, Appellate Division in 2013 and the Court of Appeals in 2014.
The case began with a 2011 amendment to the Town of Dryden’s zoning ordinance which banned “all oil and gas exploration, extraction and storage activities.” Anschutz Exploration Corporation—a driller and developer of oil and gas wells which owned leases throughout the Town of Dryden—sued the town, claiming that the ban on hydraulic fracturing was both expressly and impliedly preempted by the New York State Oil, Gas and Solution Mining Law (OGSML).
“A driller and developer of oil and gas wells sued the town, claiming that the ban on fracking was both expressly and impliedly preempted by the New York State Oil, Gas and Solution Mining Law.”
The OGSML specifically states that its provisions “shall supersede all local laws and ordinances relating to the regulation of the oil, gas and solution mining industries.” In interpreting this provision, the court applied a three prong test, considering “(1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislative history.”
In examining the plain language of the statute, the court determined that the OGSML “is most naturally read as preempting only local laws that purport to regulate the actual operations of oil and gas activities, not zoning ordinances that restrict or prohibit certain land uses within town boundaries. Plainly, the zoning laws in these cases are directed at regulating land use generally and do not attempt to govern the details, procedures or operations of the oil and gas industries.” The court further noted that “[a]lthough the zoning laws will undeniably have an impact on oil and gas enterprises . . . this incidental control resulting from the municipality’s exercise of its right to regulate land use through zoning is not the type of regulatory enactment relating to the oil, gas and solution mining industries which the Legislature could have envisioned as being within the prohibition of the statute.”
Moving on to the second factor, the court examined the OGSML as a whole, noting that “the OGSML is concerned with the Department’s regulation and authority regarding the safety, technical and operational aspects of oil and gas activities across the State.” Therefore, the suppression clause would “invalidate local laws that would intrude on the Department’s regulatory oversight of the industry’s operations” but need not preempt local laws unless directed at the technical aspects of the industry. Additionally, while a stated goal of the OGSML is to promote greater recovery of oil and gas, this goal is insufficient to preempt local zoning authority.
“While a stated goal of the OGSML is to promote greater recovery of oil and gas, this goal is insufficient to preempt local zoning authority.”
The court then examined the legislative history of the OGSML, finding nothing which indicates that the suppression clause “interfere[s] with local zoning laws regulating the permissible and prohibited uses of municipal land.” In fact, the court found that “the history of the OGSML . . . makes clear that the State Legislature’s primary concern was with preventing wasteful oil and gas practices and ensuring that the Department had the means to regulate the technical operations of the industry.”
The New York Constitution states that “every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law . . . except to the extent that the legislature shall restrict the adoption of such a local law.” After reviewing all three factors—the plain language, the statutory scheme, and the legislative history—the court found that the Town of Dryden’s ordinance was not preempted by the OGSML. As the ordinance was not preempted, it was specifically protected by the New York Constitution and should not be overturned, even though it prevented an entire industry from operating in the town.
Because the New York moratorium is still effectively in place, the decision in this case had no immediate impact. Even if the court had found in favor of Norse Energy, drilling would still have been prohibited under state law. Additionally, under Governor Cuomo’s proposed hydraulic fracturing plan, the state law would be amended to specifically ensure that municipal bans on hydraulic fracturing would not be preempted. However, this decision does protect local bans should some future governor seek to further expand hydraulic fracturing in the state.
Robinson Township v. Commonwealth of Pennsylvania
Just months after the New York Supreme Court, Appellate Division upheld the Town of Dryden’s ordinance, the Pennsylvania Supreme Court reached a decision in a similar case, also protecting the right of municipalities to ban hydraulic fracturing.
This case arose out of Pennsylvania Act 13, a 2012 law which regulated hydraulic fracturing. Among the act’s many provisions, Section 3303 specifically preempted all local ordinances regarding oil and gas regulation and Section 3304 required local ordinances to allow for reasonable development of oil and gas operations. The township claimed that these provisions violated Pennsylvania Constitution, Article I, Section 27 which states:
“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.”
The township also claimed that Sections 3303 and 3304 unduly interfered with the duty of local governments to enact zoning ordinances and ensure proper land use.
The court held that Article I, Section 27 is not simply a source of authority for legislative action, but also creates a governmental duty to refrain from infringing on this right. Additionally, this duty extends beyond the state government and also applies to local governments throughout the state. The court found that expanded oil and gas production could have a widespread and detrimental impact on Pennsylvania’s environment and that both the state and the local governments had a duty to minimize the environmental harm.
With regard to Section 3304, the court found that allowing industrial uses “in every type of pre-existing zoning district is incapable of conserving or maintaining the constitutionally-protected aspects of the public environment and of a certain quality of life.” Local governments have a constitutional duty to limit environmental harm and preserve quality of life for their residents. Forcing them to allow oil and gas drilling in without regard for environmental considerations prevents them from exercising this constitutionally mandated duty. Section 3304 prevents communities from adopting zoning laws which are necessary to protect residents from harm. Accordingly, the court struck down Section 3304 as unconstitutional.
“Local governments have a constitutional duty to limit environmental harm and preserve quality of life for their residents. Forcing them to allow oil and gas drilling without regard for environmental considerations prevents them from exercising this constitutionally mandated duty.”
The court reached a similar decision with regard to Section 3303, once again finding that the law interfered with local governments’ constitutional duty to protect the environment. “[B]ecause the General Assembly has no authority to remove a political subdivision’s implicitly necessary authority to carry into effect its constitutional duties,” the court struck down that provision.
The decision was an enormous victory for municipalities that have banned hydraulic fracturing and those that hope to do so in the future. The court affirmed the idea that municipalities have an obligation to protect the environment, that they can meet this duty through proper use of zoning law, and that the state cannot interfere with this duty.
The federal government has failed to sufficiently regulate hydraulic fracturing. Congress has exempted the process from the Safe Drinking Water Act and the EPA has failed to take any significant regulatory action. The federal government has even failed to enact basic disclosure laws that would alert citizens to the chemicals being used in fracking fluid. In this absence of federal regulation, a few states have adopted bans or moratoria on hydraulic fracturing.
However, only three of these bans are currently in effect and others may lapse within the next few years. With so little regulation coming from the federal and state level, it falls to municipalities to truly regulate hydraulic fracturing. Using their inherent zoning power hundreds of municipalities have banned hydraulic fracturing and hundreds more are considering bans as well. Such bans are currently a necessity, a last line of defense to protect citizens from potentially dangerous chemicals. Until federal laws require disclosure of all chemicals used in hydraulic fracturing and prevent the use of particularly dangerous chemicals, local bans are necessary to protect both citizens and the environment.
“With so little regulation coming from the federal and state level, it falls to municipalities to truly regulate fracking.”
States should work with local municipalities to ensure that local bans will be upheld. Governor Cuomo’s proposed plan for hydraulic fracturing is one potential model as it would allow drilling in parts of the state where it is popular, but allow any municipality to prohibit the practice. At the same time, states should avoid laws like Pennsylvania Act 13, which attempt to override local zoning ordinances to promote hydraulic fracturing. Zoning is an important local right and responsibility and states should not attempt to usurp this right, especially not for the purpose of bringing unpopular hydraulic fracturing operations into an unwilling community. Local governments are best equipped to decide which land uses are appropriate in which location and these decisions should not be overridden, especially by laws as broad and inflexible as Act 13.
Finally, courts should look favorably on local bans of hydraulic fracturing and should uphold these bans whenever possible. Where there is no express preemption by state oil and gas law, local bans should be upheld as an exercise of municipal authority. Where state law does preempt local ordinances, courts should consider whether such preemption violates state authority and interferes with fundamentally local issues.
With the current lack of federal oversight, it falls to states and municipalities to determine whether hydraulic fracturing should be allowed within their borders. When municipalities decide to ban hydraulic fracturing, this decision should be respected by both state legislatures and the courts.
 In the of Matter of Wallach v. Town of Dryden, 2014 N.Y. LEXIS 1766.
 Id at 4.
 Id at 4-5.
 NY CLS ECL § 23-0303
 Wallach, supra note 86 at 12-13.
 Id at 17.
 Id. at 24-25.
 Id. at 25.
 Id. at 23.
 Id. at 25-26.
 Id. at 31.
 NY CLS Const Art IX, § 2
 Wallach, supra note 86 at 34-35.
 Robinson Tp., Washington County v Com., 83 A3d 901 [Pa 2013].
 Id. at 913-16.
 Id.at 913.
 Id. at 913-16.
 Id. at 964.
 Id. at 961.
 Id. at 979-82.
 Id. at 977-78.
 Id. at 1000.