“A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole.”
–Matter of Wallach v. Town of Dryden
This blog post is a preview of the upcoming student case note, “Frack Attack: the Post-Dryden Battleground and How Local Governments Can Join the Anti-Fracking Fray.” The note examines the June 30, 2014 Court of Appeals of New York case Matter of Wallach v. Town of Dryden, which upheld a municipality’s home rule authority to use zoning to ban the controversial natural gas extraction process known as hydrofracking. This decision has far-reaching impacts for New York municipalities. In addition, the decision has been echoed by Governor Cuomo’s administration announcement that fracking is now banned in New York State as of December 17, 2014 because of the rampant concerns over possible health risks, ending the many years of debate over the previous moratorium.
A highly contentious process, fracking is essentially gas exploration that uses pressure, sand, and chemically infused water to create fissures in deep underground shale formations that allow oil and natural gas to flow. While conventional fracking—i.e. vertical drilling—is a relatively old technology that has been used for at least 60 years in the United States, horizontal fracking is a much newer technology. It relies on the ability to turn a downward-plodding drill bit as much as 90 degrees to continue drilling parallel to the Earth’s surface for thousands of feet. This added capacity has led to the recent explosion of natural gas production in the United States, in addition to numerous reports about fracking—and the estimated 827 trillion cubic feet of gas available—being the answer to our energy prayers.
However, there are numerous concerns surrounding the safety of this drilling technique, as many in the environmental community have jumpstarted the issue by accusing fracking of threatening our drinking water supplies. These trepidations more specifically include: massive water depletion and pollution; air pollution and dust; visual blight and noise; habit fragmentation; increased soil erosion and sedimentation; surges in truck traffic; overwhelming of local services and infrastructure such as waste treatment and disposal; and decreased property values. In addition, while less certain to occur, other situations may result from fracking, including possible natural gas leaks and escaped methane and volatile organic compounds, and increased ground-level ozone, which may exacerbate the effects of the climate change phenomenon. Arguably the most contested effect, drilling companies dispose of the massive amounts of wastewater (i.e. “flowback”) needed to frack via deep well injection: the deposit of toxic brine waste under extreme pressure in wells thousands of feet below the Earth’s surface. At best, underground deep well injection pollutes groundwater aquifers; at worst, science has currently linked the process to an increased risk of earthquakes, especially if the geology of the area is not conducive to fracking in general. As can be expected, there are also numerous positive impacts of fracking, including increased domestic revenue, employment opportunities, and other local short-term economic benefits.
While the process certainly has the potential to endanger our entire nation’s human health and environment, municipalities are at the forefront of the battle lines. Because geographical access to shale formations is mainly a local, rather than national or even state-wide issue, drilling companies naturally seek out individual municipalities—as well as individual landowners in said municipalities—in order to create drilling contracts. Municipalities are the ones who will have to deal with any potential adverse effects of fracking. Moreover, municipalities themselves have to weigh these numerous deleterious effects with the potential short-term economic boom that will benefit their communities—a decision that has added implication for municipalities in need of economic revitalization. Balancing these concerns, it is clear that it is municipalities that have the ability to use their police power to mitigate adverse impacts to protect local health, safety, and welfare interests. Local governments can accomplish this through comprehensive planning, zoning, subdivision and site plan regulations, and negotiations as well as non-regulatory agreements with the private sector.
This is why the Dryden decision has far-reaching future impacts for the state of New York—even in the face of the statewide ban. If the trend of municipalities zoning out fracking, or at least regulating its effects on a local level, accelerates, local governments will possess the majority of power in the anti-fracking fight. Part of the battle for municipalities who attempt to regulate fracking is overcoming the presumption that the process must already be regulated at the federal level. One would assume that the numerous federal laws enacted to safeguard our environment would deal with such an obtrusive drilling process with myriad known adverse environmental and public health impacts. However, this presumption is entirely inaccurate. Fracking is only regulated marginally through six of the federal environmental laws: the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), the Resources and Conservation Recovery Act (RCRA), the Clean Air Act (CAA), the Comprehensive Environmental Response Compensation Act (CERCLA), the Toxic Substances Control Act (TSCA), and the Endangered Species Act (ESA).None of these acts put significant regulations on the fracking process. State regulation fares little better. States mainly focus on regulations at the drilling stage itself, such as requiring casing of the wells and blowout prevention equipment. This missing link in federal and statewide regulation represents an opportunity for municipalities to mitigate the fracking risks they find most bothersome, while still allowing for oil and gas drilling within their jurisdictions.
For example, New York municipalities wishing to regulate fracking can take note of best practice examples from around the country. This case note focuses on fracking ordinances from: Sante Fe County, New Mexico; Flower Mound, Texas; and Oklahoma City, Oklahoma. Comparisons among these regulatory ordinances are important for municipalities who may not wish to enact “mini-moratoria,” or when local governments attempt to entirely ban fracking within their jurisdiction. Dryden itself utilized an incompatible uses argument to achieve an overarching, blanket ban on fracking: the Town believed that this heavy industrial activity merely was not compatible with its rural nature. Other municipalities may wish to allow fracking, but mitigate specific risks within the area, such as concerns about groundwater contamination or potential nuisance claims. Therefore, looking at other examples from around the country will aid a municipality to choose what regulations are most important to its citizens to produce the safest drilling possible.
It is clear that New York’s current fracking ban could eventually be overturned with a regime change. Therefore, it is important that statewide local governments be proactive, take inventory of local thoughts on fracking, and institute any regulations they deem appropriate. Local governments in New York are fortunate to possess home rule authority—some other states are not as lucky. Following Dryden’s example and banning fracking entirely based upon this authority may not be the correct path for every local government, but having the ability to do so showcases how much power New York municipalities have in the fracking arena. By handcrafting their regulations to account for local concerns about the environment and the public health, safety, and general welfare of their inhabitants, New York municipalities can effectively choose what side of the post-Dryden fracking war they fall upon. It is merely up to these local governments to draw battle lines within their borders.