Regulating Fracking: The Constant Battle of Rights

By: Kristin Pelatti

Questions of the regulation of hydraulic fracking have been an issue of major concern in the past couple of years, specifically coming to light in the controversy of the Dakota Access Pipeline recently. The main question posed from many parties adverse to the implementation of hydraulic fracking is “how do we stop this?”

Fracking is the use of millions of gallons of water and chemicals to force deposits of oil and gas within the earth up to the surface for use by oil and gas companies.[1] This poses valid environmental concerns over the potential negative impact fracking can have, which has resulting in growing advocacy toward increased regulations in order to limit and sometimes ban fracking all together in certain areas. Advocates for increased regulation believe the negative environmental impact poses a health and safety risk to those within the community and as such more stringent regulations should be imposed to address fracking, whether federal or within states.

In recent years however, there has been a shift toward municipal governments limiting fracking within their zoning codes. An example was seen in a New York Court of Appeals Case, Wallach v. Dryden, in which it was held that since the amendment to the Town of Dryden’s comprehensive plan and zoning law, which banned the production of oil and gas production, was valid as it was not preempted by the state’s Oil, Gas and Solution Mining Law (OGSML).[2] Such regulations were advanced in New York as a result of adverse parties to fracking believing the environmental impact is something that cannot be overlooked and local governments taking action within their zoning to address such concerns.[3] However, opposing parties view that the regulations themselves pose a question of the constitutionality due to the taking of property owner’s ability to profit from their mineral rights.[4]  This is beginning to get more traction as well, as more states are finding conflict between state laws preempting municipal zoning laws, making the municipal laws that ban or limit fracking invalid. [5]

The question has now become, which is more important? This question is continuously looked at as more information from the research on environmental impacts of fracking comes about. As of now, so long as municipal governments are regulating fracking reasonably within their police power to protect the health, safety, and welfare of the public, and the regulations are not preempted by state and federal law, regulations can continue to be held as valid. However, as time goes on, this question will continuously be addressed and we will see even more potential answers in the hopes of codifying one concrete rule. For now, we will just have to wait and see what the future brings for regulations on fracking.

[1] UNFRACKTURED: JOINING TOGETHER TO FIGHT FRACKING, Earthjustice, http://earthjustice.org/advocacy-campaigns/unfracktured?gclid=CIPfydbYgtACFclbhgodo5YFVQ (last visited 10/30/16).

[2] Wallach v. Dryden, 16 N.E.3d 1188, 1188 (NY, 2014).

[3] NEW YORK TOWNS CAN BAN FRACKING, STATE HIGH COURT RULES Wallach v. Town of Dryden, 26 Westlaw J. Env’t 2, (2014).

[4] Merrill Matthews, Anti-Fracking Laws vs. Property Rights, The Wall Street Journal (July 31, 2014) http://www.wsj.com/articles/merrill-matthews-anti-fracking-laws-vs-property-rights-1406848564.

[5] See generally, City of Longmont v. Colorado Oil and Gas Association, 369 P.3d 573 (2016); See also, DON’T “FRAC“ THIS UP: DENTON’S FRAC BAN AND THE APPROPRIATE STATE LEGISLATIVE RESPONSE, 47 Tex. Tech L. Rev. 843 (2015).

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