Debates are raging in states underlain by shale gas formations, triggering arguments about the economic, health, and environmental impacts of a seemingly more climate-friendly source of energy. As we move from coal and oil to gas, countless decisions must be made about which level of government in our legal system should regulate which aspects of this new technology called unconventional gas drilling or hydrofracking.

This blog post highlights topics covered in depth by my articles, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, Hydrofracking: Disturbances Both Geological and Political: Who Decides? (with Victoria Polidoro), and Hydrofracking: State Preemption, Local Power, and Cooperative Governance (with Steve Gavin).

Electricity is produced primarily by generation plants fueled by coal and gas, which produce extensive GHGs. Since the development of new methods of hydrofracking to capture gases contained in shale formations, much of the nation has been riveted on gas drilling; a debate has erupted over its effect on climate change and its many possible impacts on the physical environment and public health. Hydrofracking dominates much of the discussion in energy law as advocates focus on the economic and environmental impacts of this relatively new technology for extracting gas stored deep in shale formations. On the one hand, regulators struggle with emerging facts and evolving science as they attempt to number and measure these impacts and, on the other, they debate which level of government should regulate which aspects of this new energy technology.

For the legal system, the challenges are two: to list and examine all of the economic, health and environmental impacts of fracking; then to decide which level of government should regulate each one. To date, states have dominated the regulation of shale gas drilling, while localities in some states have struggled to control local impacts, while the federal government has charted a modest path of regulating a few impacts of fracking that impinge on clean air and water and the protection of drinking water. In some states, the tension between state and local control is palpable. At stake are critical policy issues about who decides issues that have national, regional, and local impacts and the role of regulation in developing effective strategies for resolving such complex environmental and economic conflicts.

This tension is nowhere more evident than in New York, where state and local officials, business leaders, gas company officials, environmentalists, and the public have been locked in a fractious and escalating debate about whether and how to allow horizontal drilling for natural gas. Much of the attention regarding the promise and perils of drilling for shale gas is focused on the Marcellus Shale formation, which is one of the largest shale gas formations in the United States, underlying several Mid-Atlantic states including 18,700 square miles in New York. Estimates of the number of wells that will result in this vast Marcellus region in New York alone range up to 40,000.

The affected public is besieged regularly by articles in the media and countless reports that either laud or vilify hydrofracking. Reports on the first earthquake in New York’s recent memory were not spared from the hydrofracking debate when it was discovered that drilling was being conducted near the epicenter of the quake. Localities have used their delegated zoning and police powers to ban hydrofracking, seriously limit it, or prevent it for a time by adopting moratoria on gas drilling. Under zoning, gas drilling is an industrial activity and such uses, if permitted at all, are normally confined to limited portions of the community where their environmental and health impacts are carefully regulated.

Two upstate towns, Middlefield and Dryden, prohibited gas drilling by zoning it out, and were sued for doing so by petitioners who argue that local zoning power is preempted by state law in New York. The towns won the first two rounds in both instances, with lower courts holding that state legislation giving the State Department of Environmental Conservation power to regulate gas drilling did not preempt localities from using zoning to regulate traditional land use impacts. The intermediate appellate court in New York recently upheld these rulings. In the Middlefield case, the court spoke plainly about the intention of the state legislature, holding that it did not intend to disturb the traditional zoning power of local governments, but rather to impose uniform statewide regulation of the operation of gas drilling facilities, not their location or land use impacts.

Tension is evident in other Marcellus Shale states. The state legislature in Pennsylvania adopted Act 13 to make it clear that the state’s power to regulate fracking preempts local land use control, only to be overturned by a Pennsylvania court that held such preemptive action invalid because it violates the basic precept that land-use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.

Morgantown, West Virginia had a local law that banned fracking within one mile of its borders invalidated by a state court and then proceeded to adopt another law banning gas drilling within its city limits. Yellow Springs, Ohio, adopted a Community Bill of Rights in 2012 that bans shale gas drilling and injection wells within its borders, becoming the first municipality in the state to take such action.

These battles test our legal system’s decision-making process regarding critical issues such as energy production and the protection of the environment and natural resources. If localities are preempted from regulating gas drilling and Congress and EPA do not step forward with more aggressive regulations, these issues will be decided wholly by state legislatures and state agencies. Without some method of integrating all three levels of government, the resources of the federal and local governments will not shape the outcome regarding issues of critical importance to their constituencies.

Attorneys for the involved stakeholders, in the interim, are mired down by winner-take-all advocacy in a dispute muddied by conflicting claims and data. The skills of lawyers in issue spotting, fact gathering and analysis, creating productive negotiations for the resolution of complex matters, and framing agreements need to be sharpened and engaged fully in order to influence the outcome of this critical debate. The sub-optimal process being employed to decide the future of hydrofracking in the Marcellus Shale region should cause lawmakers to revisit and rethink how such critical issues are decided.