State and Political Processes
Read the “Hydrofracking” and “Fracking debate” articles on this week’s University Library
Resources
page.
Write a 1,050- to 1,400-word paper based on the Hydrofracking article. Include the following points in your paper:
- Describe the ways in which different levels of government interrelate. What solution are the different governments trying to achieve?
- Identify the advantages and disadvantages in the ways that the governments involved work together.
- Provide a possible solution to the current way of hydrofracking that would be better by having different levels of government work together. Include ways in which communication between the governments might be improved.
- Identify a way for local and state governments to both stimulate their economies while being respectful of the environment.
- Provide an example of a current issue near your home that involves multiple governments and the ways in which they do or do not work together effectively. Examples could include environmental, educational, or technological issues.
Format your paper consistent with APA guidelines.
Submit your assignment.
Resources
C A S E W E S T E R N R E S E R V E LAW R E V I E W • VOLUME 63 • ISSUE 4 • 2013
H Y D R O F R A C K I N G :
STATE PREEMPTION, LOCAL POWER,
AND COOPERATIVE GOVERNANCE
John R. Nolon^ & Steven E. Gavin^
ABSTRACT
Advocates for the gas drilling technology known as hydrauhc 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 pubhc interest. One of
the many issues raised by hydrofracking is which level of goverrmient
should regulate which aspects of the practice. This debate is
comphcated 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 goverrmient. This
Article begins by describing the hmited 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 MarceUus 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 drilhng operations. This
investigation suggests that the broad scope and durabihty 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 extraordi-
narily 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
goverrmient can be integrated in a system of cooperative governance.
t John R. Nolon is Professor of Law at Pace Law School and Counsel to
the Land Use Law Center, and has been an adjunct professor at the
Yale School of Forestry and Environmental Studies since 2001.
\ Steven E. Gavin is a student at Pace Law School and editor in chief of
the Pace Environmental Law Review.
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CASE WESTERN RESERVE LAW REVIEW • VOLUME 63 • ISSUE 4 • 2013
Hydrofracking: State Preemption, Local Power, and Cooperative Governance
CONTENTS
INTRODUCTION: HVDROFRACKING RAISES JURISDICTIONAL ISSUES
996
L LIMITED SCOPE OF GURRENT FEDERAL REGULATIONS
1000
A. Safe Drinking Water Act
1002
B. Clean Water Act
1005
C. Clean Air Act
1006
D. Comprehensive Environmental Response, Compensation,
and Liability Act
1008
E. Resoxirce Conservation and Recovery Ad
1009
F. Endangered Species Act lOlO
C. Toxic Substances Control Act
1012
IL NEW YORK: LOCALITIES WIN ROUND ONE, ESCAPINC PREEMPTION…
1013
i n . PENNSYLVANIA: PREEMPTION THWARTED
1021
ÍV. W E S T VIRCINIA AND OHIO; HYDROPRACKINC LAW IN LIMBO
1026
A. West Virginia Cas Regulation and Local Land Use Control 1026
B. Ohio
1031
V. GooPERATivE GOVERNANCE: STATE-LOCAL GOLLABORATION
1036
INTRODUCTION: HYDROFRACKING RAISES JURISDICTIONAL ISSUES
Hydraulic fracturing, or hydrofracking, is a gas well stimulation and
extraction technique designed for ai’eas underlain by large shale
formations foimd 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 fai- from the well
head.’ In horizontal hydrofracking, millions of gallons of water ai’e
pmnped at high pre&sure into the well bore—water that contains
thousands of gallons of proprietary chemical shnrries and a propping
agent, such as sand.^ The pressure creates fractures in the hychocaibon-
1. Marianne Levelle, Forcing Cas Out of Rock with Water, NAT’L
GEOGRAPHIC DAILY NEWS (Oct. 17, 2010), http://news.nationalgeo
graphic.com/news/2010/10/i0
1022
-energy-marcellus-shale-gas-science-tec
hnology-water.
2. Between one million and five million gallons, or more, of water are
needed for a typical gas well in the Marcellus shale. MICHÈLE RODOERS
ET AL., MARCELLUS SHALE: WHAT LOCAL GOVERNMENT OFFICIALS
NEED TO KNOW 5 (2009), available at http://pubs.cas.psu.edu/
freepubs/pdfs/ua454 . About 99.5% of this finid is composed of water
and proppant (usually sifted sand) and about 0.5% consists of chemical
additives. See GROUNDWATER P R O T . GOUNCIL, MODERN SHALE GAS
DEVELOPMENT IN THE UNITED STATES: A PRIMER 61-62 (2009),
available at http://www.gwpc.org/sites/default/nies/Shale%20Gas%20
Primer%202009 (noting that chemicals used include biocides, gels.
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Hydrofracking: State Preemption, Local Power, and Cooperative Governance
bearing shale and the propping agent keeps the fissures open.̂ This
releases the natural gas that the shale contains and allows it to be
pumped to the surface.” 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 facihties.^ This raises
complications in some states, particularly those in the Marcellus region,
where the geology is not favorable to injection wells.® This, in turn,
leads to a search for appropriate injection wells in other states and for
treatment plants that can handle this wastewater, which axe often in
short supply.^ Horizontal hydrofracking operations also emit volatile
organic compounds and methane during the completion of the wells,
raising both public health and climate change concerns.^ 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.^
Advocates for the gas drilling industry argue that hydrofracking
will bring significant economic benefits to the private and pubhc
friction reducers, and other agents that reduce corrosion, thus easing the
process of hydrofracking the shale). For a graphic representation, see A
Fluid Situation: Typical Solution Used in Hydraulic Fracturing, ENERGY
IN DEPTH, http://www.energyindepth.org/frac-fluid (last visited
Apr. 9, 2013).
3. N.Y. STATE D E P ‘ T OF ENVTL. CONSERVATION, REVISED DRAFT,
SUPPLEMENTAL GENERIC ENVIRONMENTAL IMPAGT STATEMENT ON
THE OIL, GAS AND SOLUTION MINING REGULATORY PROGRAM 5-5
(2011) [hereinafter REVISED DRAFT S G E I S ] , available at http://
www.dec.ny.gov/data/dmn/rdsgeisfullO911 ; John A. Harper, The
Marcellus Shale—An Old “New” Gas Reservoir in Pennsylvania, 38 P A .
GEOLOGY 1, 10 (2008), available at http://www.dcnr.state.pa.us/cs/
groups/public/documents/document/dcnr 006811 .
4. See REVISED DRAFT SGEIS, supra note 3, at 5-5 (describing how
hydrocarbons are retrieved after fluids are injected and recovered).
5. See id. at 5-131 (noting the disposal options for flowback water).
6. Joanna Zelman, New York Fracking Debate Focuses on Wastewater,
HUFFPOST GREEN (Feb. 20, 2012 8:27 AM), http://www.huffmgton
post.com/2012/02/20/new-york-fracking_n_1288696.html (“Other geologists
have said New York doesn’t have the right geology for such wells.”).
7. See REVISED DRAFT SGEIS, supra note 3, at 5-132 to 5-133.
8. Press Release, EPA, EPA Proposes Air Pollution Standards for Oil and
Gas Production (July 28, 2011), http://yosemite.epa.gov/opa/admpress.
nsf/le5abll24055f3b28525781f0042ed40/8688682fl3bblac65852578db0069
0ec5 ! OpenDocument.
9. See REVISED DRAFT SGEIS, supra note 3, at 6-303 (estimating that
each permitted well generates about 6,800 truck trips).
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Hydrofracking: State Preemption, Local Power, and Cooperative Covemance
sectors.'” 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, ta^
revenues, water needed, wastewater created, and the extent of
gronndwater 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 hydrofracking point also to a variety of
environmental risks that they fear are associated with the technology:
air pollution, groimdwater depletion and contamination, surface-water
pollution, soil erosion and sedimentation, visual blight, noise pollution,
road congestion and destruction, and the deterioration of community
chai”acter.” They worry as well about a vai’iety 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 matter
from heavy trucks travelling on dirt roads, personal injury from seeping
hydrochloric acid and solvents, eai’thquakes, and diesel ñiel and toxic
chemicals in ground water.'”^
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 hydro-
fracking are national, regional, statewide, and local in nature and that
the risks associated with hydrofi-acking 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 hydroñ’acking regulation, others argue that states should
10. See Jared B. Fish, Note, The Rise of Hydraulic Fracturing: A
Behavioral Analysis of Landowner Decision-Making, 19 BUFF. ENVTL.
L.J. 219, 265 (2012) (noting that entry of the natural gas industry can
bring jobs to communities and produce quick Financial gains for
landowners).
11. See REVISED DRAFT S G E I S , supra note 3, at 2-9 to 2-19.
12. See Charlotte Tucker, Health Goncems of ‘Fracking’ Drawing Increased
Attention, NATION’S HEALTH, Mar. 2012, at 1, 14, available at
http://thenationsheaIth.aphapublications.Org/content/42/2/l.2.rull (noting
the EPA’s public health concerns related to hydrofracking); see generally
REVISED DRAFT SGEIS, supra note 3 (providing a detailed accounting
of the airborne chemicals detected at well sites, water quality measures,
seismic activity, traffic effects, and health risks).
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Hydrofracking: State Preemption, Local Power, and Cooperative Covemance
preempt local regulation, and some see benefits in the involvement of
all three levels of government in regulating the technology..’̂
If the advocates of either federal or state preemption prevail, the
historical role of local governments in controlhng local land uses and
their impacts will be diminished, if not extinguished.” LocaJ govern-
ments 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 imphcation, state legislatures
13. See Ghristopher S. Kulander, Shale Oil and Gas State Regulatory Issues
and Trends, 63 GASE W . RES. L . REV. 1101, 1140 (2013) (“[W]hat.is
being derided as a weakness is actually a strength: each state can
rapidly respond to its unique blend of economic, political, hydrologicàl,
and geological realities to achieve realistic and functional regulatory
oversight. A further weakness alleged by those favoring federal primacy,
that states are ‘rushing’ to create law regulating fracing, is also a
strength: the necessary regulations are made in a timely manner, in
response to industry activity, and by those more familiar with the
challenges faced by an individual state.”).
14. The law of preemption is fraught with ambiguity, giving courts leeway
to embrace different policies and achieve different results, given the
context. The Supremacy Glause can be relied upon to support federal
dominance, or the Tenth Amendment to support strong state control;
jurists can dissect language in federal or state statutes that seems to
express an intent to preempt and still decide that the matter under
investigation is not preempted because some aspect of the field regulated
is not dealt with in the statutory scheme. When local governmental
power is the issue, home-rule statutes and fundamental powers of local
government can be relied upon to argue against state law preemption; in
Dillon’s Rule states, this is more difficult, but the Rule is declining in
popularity, and more liberal interpretations of local power are emerging
giving more sway to statutes that delegate power to localities. This
leeway in the law of preemption gives both parties to disputes over legal
power opportunities to make their best case for control of the matter at
hand. This Article posits that those favoring local control over
hydrofracking have a good ca^e because of the complexity,
comprehensiveness, and importance of local land use control in the
critical matter of municipal governance. The authors credit Michael
Allan Wolf, Richard E. Nelson Ghair in Local Government Law,
University of Florida, Levin Gollege of Law, for this insight, which was
offered during his introductory remarks at the 2013 Nelson Symposium.
Professor Wolf urged that scholars and lawyers should embrace this
ambiguity and make their best case for their desired result in each
instance. The argument for a presumption against preemption of local
land use control is the authors’ own.
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Hydrofracking: State Preemption, Local Power, and Cooperative Govemance
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 mmiicipal 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
legislatui”es intended to preempt local zoning.
This Article begins iu 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 use power tends to make
courts reluctant to usurp local prerogatives in the absence of clear and
express language of preemption in gas regulation statutes. The Article
concludes in Part V 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.
I. L I M I T E D S C O P E O F C U R R E N T F E D E R A L R E G U L A T I O N S
Several federal statutes apply, either directly or theoretically, to
hydraulic fi’acturing. But the sprawling federal regulatory structure is
rife with ambiguity and is in a state of flux. Mounting political
pressure from environmental gi’oups, citizen-activists, academia, and
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Hydrofracking: State Preemption, Local Power, and Cooperative Covemance
even Holljrwood’̂ is forcing federal authorities to explore new avenues
of regulation within the existing regulatory structure.”‘ Countervailing
pressures, however, from conservative members of Congress, industry
lobbyists, and environmentalists who advocate for state and local
authority, are trying to strip the EPA of its authority or, at a
minimum, contain it.
Born out of the statutes discussed in the subsections below, the
current federal regulatory system is both fragmented and incomplete.
The Safe Drinking Water Act (SDWA), which applies to the injection
or reinjection of hydrofracking fluid into groundwater aquifers that
provide drinking water, only imposes standards upon drilling
operations injecting diesel fuel, just one of myriad concerns
surrounding the technology.’^ The Clean Water Act (CWA), which
applies to surface water contamination, is powerless to address the
potential contamination resulting from water migrating to the surface
waters after being injected into the ground.’^ The Clean Air Act
(CAA) is cinrrently being used to institute new rules on the release of
methane and hazardous air pollutants, but the scope of this relatively
successful regulatory scheme is confined to the well pad point source;’^
The Comprehensive Environmental Response, Compensation, and
Liabihty Act (CERCLA) grants the EPA the authority to hold
polluters strictly liable for cleanup costs of hazardous waste sites, but
“petroleum . . . [and] natural gas” are exempted from the definitions
of “hazardous substances.”^” Likewise, oil and gas waste is exempted
from the “cradle-to-grave” waste management scheme of the Resource
Conservation and Recovery Act (RCRA).^’ The Endangered Species
Act (ESA) grants the Secretary of the Interior the power to protect
endangered species from “take,” but this approach is rarely used and
entirely contingent upon the regional concerns regarding particular
15. Mark Fischetti, Matt Damon’s Fracking Movie Depicts Gas Gompanies
as Liars, Sci. AM. (Jan. 6, 2013), http://blogs.scientificamerican.com/
observations/2013/01/06/matt-damons-fracking-movie-depicts-gas-compa
nies-as-liars.
16. In the absence of legislative action. President Obama appears poised to
push federal hydrofracking regulations during his second term. See
Wayne J. D’Angelo, Hydraulic Fracturing Regulation in President
Obama’s Second Term, FRACKING INSIDER (NOV. 13, 2012), http://
www.frackinginsider.com/hydrauUc-freicturing-regulation-in-president-obam
as-second-term (noting that the Obama administration is surveying the
regulatory authority it has within existing statutes and assessing how to
issue rules under those statutes).
17. See discussion infra Part LA.
18. See discussion infra Part I.B.
19. 5ee discussion infra Part LC.
20. See discussion infra Part I.D.
21. See discussion infra Part I.E.
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The Obaina administration partially granted a petition to
require manufacturers to disclose the chemical makeup of
hydrofracking fluids under the Toxic Substances Control Act (TSCA),
but even if fully granted, these disclosures do not necessitate any
regulation in and of themselves.^^
A. Safe Drinking Water A ci
Enacted in 1972, the Safe Drinking Water Act is designed to ensure
the integrity and safety of public water for human consumption, focus-
ing paiticularly on toxic substances.̂ “* The SDWA estabhshes two
primary regulatory structures to maintain safe public drinking water,
the first of which requires the EPA to set maximimi contaminant levels
for public water systems.^ The second, which appUes to hydrofracking,
mandates that the EPA establish regulatory minima governing
miderground injection, and prohibits “imdergi-ound injection” of fluids
without a pernút.̂ ^ This pertains directly to hydrofracking operations,
which involve the undergroimd injection of millions of gallons of water
containing proppants and proprietai’y chemicals.
The SDWA establishes an Undergi’ound Injection Control progi-am
(UIC), which establishes “inspection, monitoring, recordkeeping, and
reporting requirements” designed to protect drinking water sources
from contamination due to injection operatioiis.^^ The extent to which a
pai’ticular site is regulated depends on which of five classifications it
receives.^ The UIC sets minima for “inspection, monitoring,
recordkeeping, and reporting requirements.”^^ States must implement
their own UIC programs, meeting or exceeding the requirements set by
the EPA.™ After the EPA approves the state UIC program, the state is
22. See discussion infra Part l.F.
23. See discussion infra Part I.G.
24. 42 U.S.C. §§ 300f-300j-26.
25. See 42 U.S.C. §§ 300g-l(a)-(b) (mandating the promulgation of national
primary drinking water regulations and maximum contaminant level
goals).
26. 42 U.S.C. § 300h(b)(l)(A).
27. 42 U.S.C. § 300h(b)(l)(CHb)(2).
28. See 42 U.S.C § 300h-5 (directing the EPA to promulgate regulations
and determine the applicability of monitoring methods to provide the
earliest possible detection of fluid migration into underground sources of
drinking water); 40 C.F.R. § 146.5(a)-(e) (2012) (describing the five
classes of injection wells in the UIC program).
29. 42 U.S.C. § 300h(b)(l)(C); see also 40 C.KR. § 145 (covering state UIC
program requirements).
30. 42 U.S.C. § 300h-l(b)(l)(A).
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responsible for its enforcement.^’ The EPA, however, retains veto power
over the state permitting program.̂ ^
The fight over the EPA’s authority to regulate hydrofracking
under the SDWA has a relatively long legislative history, beginning
with the Legal. Environmental Assistance Foundation, Inc. v. EPA
(LEAF) decision of 1997.̂ 3 In LEAF, the plaintiff challenged the
EPA’s decision to approve the Alabama state UIC program, which
failed to regulate hydraulic fracturing operations.^ In 1997, the
Eleventh Circuit held that the plain meaning of the SDWA
“require[d] the regulation of all [underground injection] activities. “̂ °
Following this 1997 ruling, the EPA conducted a study of the
hydrofracking process in order to determine whether the risks were
sufficient to warrant regulation under the SDWA.̂ ” In a 2003
negotiated agreement with the EPA, Halliburton Energy Services, BJ
Services, and Schlumberger Technology voluntarily agreed “to
eliminate diesel fuel in hydraulic fracturing fluids injected into coalbed
methane . . . production wells in undergrourid sources of drinking
water (USDWs).” ‘̂̂
In 2004, the EPA’s study on potential impacts on USDWs found
that injection of hydrofracking fluids posed “minimal threat to
USDWs,” yet admitted that certain chemicals sometimes used in
hydrofracking opérations caused some “environmental concerns.”^^
Following the 2004 study. Congress passed the notorious Energy
Policy Act of 2005, containing the “Halliburton Loophole,” in
31. 42 U.S.C. § 300h-l(b)(3).
32. See id. (permitting the EPA to promulgate a rule finding that a given
state no longer meets the requirements of the program).
33. Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467 (Uth Cir.
1997). The Eleventh Circuit noted that an EPA report on hydraulic
fracturing identified a “growing potential for contamination of drinking
water aquifers.” Id. at 1471 (quoting from a 1990 report by the EPA’s
Ground Water Study Committee).
34. Id. at 1469.
35. Id. at 1475.
36. Hannah Wiseman, Untested Waters: The Rise of Hydraulic Fracturing
in Oil and Gas Production and the Need to Revisit Regulation, 20
FoRDHAM ENVTL. L . REV. 115, 144 (2009).
37. Memorandum of Agreement Between the EPA and BJ Servs. Co.,
Halliburton Energy Servs., Inc., and Schlumberger Tech. Corp., at 2
(Dec. 12, 2003), available at http://www.epa.gov/ogwdwOOO/uic/pdfs/
moa uic hyd-fract .
38. EPA, EVALUATION OF IMPACTS TO UNDERCROUND SOURCES OF
DRINKINC WATER BY HYDRAULIC FRACTURINC OF COALBED
METHANE RESERVOIRS (2004), available at http://www.epa.gov/og
wdw/uic/pdfs/cbmstudy_attach_uic_final_fact_sheet .
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response to heavy lobbying efforts from the oil and gas industry.-”̂ The
Act amended the SDWA’s definition of “underground injection” to
exchide “the underground injection of fluids or propping agents (other
than diesel fuels) pursuant to hydraulic fracturing operations related
to oil, gas, or geothermal production activities.”*”* Thereafter, states
were no longer required to seek permits before engaging in drilling
operations as part of their UIC programs, with the exception of when
diesel fuel was injected.””
Efforts to remove the loophole have been, thus far, unfruitful. The
most salient attempt by the federal government to address
hydrofracking concerns was the Fracturing Responsibility and
Awai-eness of Chemicals Act of 2011 (FRAC Act). Proposed in both
the U.S. Senate”̂ and House,”̂ the FRAC Act would impose federal
regulation in two ways. First, the Amendment would repeal the
hydrofracking exemption to the SDWA. It would modify “underground
injection” to include “the underground injection of fluids or propping
agents pin-suant to hydraulic fractin-ing operations related to oil, gas, or
geothermal production activities.”‘”” The EPA would then have to
promulgate “inspection, monitoring, recordkeeping, and reporting
requirements” for hydrofracking operations.**^ State UIC programs that
did not require a permit before commencing hydrofracking operations
would have to modify their UIC programs to require permits and then
seek EPA approval.”*’ Additionally, the Act would have required
hydrofracking operators to disclose hydrauhc fractiu:ing chemicals.**̂
The FRAC Act faced staunch opposition from the oil and gas industry,
39. Energy Policy Act, of 2005, Pub. L. No. 109-58, § 322, 119 Stat. 594, 694
(codified as amended at 42 U.S.C. § 300h(d)(l)(B)(ii) (2006)).
40. Id.
41. Id.
42. S. 587, 112th Cong. (2011). Pennsylvania Senator Robert Casey Jr., a
Democrat, sponsored the bil! along with seven original cosponsors. The
bill went to the Senate Committee on Environmental and Pnblic Works.
On April 12, 2011, the Subcommittee on Water and Wildlife held a
hearing on the bill.
43. H.R. 1084, .112th Cong. (2011). Representative Diana DeCette, a
Democrat from Colorado, sponsored the bill along with thirty-one
original cosponsors. On March 21, 2011, the bill was referred to the
House Subcommittee on Environment and the Economy.
44. H.R. 1084, 112th Cong. § 2(a) (2011); see also S. 587, 112th Cong.
§ 2(a) (2011) (using slightly different language to reach the same
outcome as the House bill).
45. See supra notes 27-32 and accompanying text (describing the
requirements for UlC programs).
46. Id.
47. H.R. 1084, 112th Cong. § 2(b) (2011); S. 587, 112th Cong. § 2(b) (2011).
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from members of Congress, and from some envirormiental groups that
wanted regulatory decisions to be made by local and state governments. .
Both the House and Senate bills died at the expiration of the 112th
Congress in January 2013 and have yet to be reintroduced in the
113th Congress.
B. Glean Water Act
Working in conjunction with the SDWA’s regulations regarding
underground sources of drinking water, the CWA”* is designed to
“eliminate the discharge of pollutants into navigable waters” and to
attain a level of water quality that “provides for the protection and
propagation of fish, shellñsh, and wildlife and provides for recreation
in and on the water.””’ Hydrofracking involves the potential point
source discharge of flowback waters produced during drilling
operations into nearby surface waters, among other techniques of
disposal. The CWA prohibits the discharge of “point source” pollution
into the “waters of the United States'”” without obtaining a permit
under the National Pollutant Discharge Elimination System
(NPDES).^’ Like it does with the SDWA, the EPA generally grants
permitting authority to states under their respective State Pollution
Discharge Elimination Systems (SPDES) but reserves the right to
institute a federal program in the event that the state fails to subfnit
an adequate program.^^ States are required to consider “technology-
based effluent limitations” and water-quahty-based limits to achieve
water quality goals.̂ ^ The CWA also regulates indirect discharge of
wastewater by truck or through sewer systems into publicly owned
48. 33 U.S.C. §§ 1251-1387 (2006).
49. 33 U.S.C. § 1251(a).
50. 40 C.F.R. §§ 122.2, 230.3(p), (s) (2012) (defining discharges from point
sources and permits, “pollution,” and “waters of the United States”).
51. 33 U.S.C. § 1342(a)(5), (b) (2006) (“The Administrator shall authorize a
State, which he determined has the capability of administering a permit
program which will carry out the objectives of this chapter to issue
permits for discharges into the navigable waters within the jurisdiction
of such state.”).
52. 33 U.S.C. § 1342(c).
53. See 33 U.S.C. § 1311(b)(2)(A) (“[E]ffiuent limitations . . . shall require
application of the best available technology economically
achievable . . . . ” ) ; § 1312(a) (effluent hmitations “shall assure [the]
protection of public health, public water supplies, agricultural and
industrial uses, and the protection and propagation of a balanced
population of shellfish, fish and wildlife, and allow recreational activities
in and on the water”); see also 40 C.F.R. § 125.3(a) (2012)
(“Technology-based treatment requirements . . . represent the minimum
level of control that must be imposed in a permit.”).
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treatment works (POTW), which discharge directly into U.S.
waters.^
While surface water discharges have been successfully regulated
under the CWA,̂ ^ it is unhkely that drillers will need to obtain an
NPDES permit until a “solid causal connection can be made between
fracking fluid injection and injiu-ies to people and property. “̂ ‘̂
Nevertheless, the CWA is the primary source of authority governing
the disposal and treatment of flowback water.̂ ^ In many western states,
drillers dispose of flowback water in storage wells below layers of
impermeable rock, but the particular geological properties of the
Marcellus formation make comparable disposal practices physically or
economically impossible.̂ ^ Accordingly, hydrofracking companies are
much more likely to dispose of flowback fluid tlu’ough POTWs in the
Mai’cellus region than in other areas of the country.̂ ‘-̂ POTW disposal
iniphcates SPDES permits, since they are regulated point soui’ces of
potential pollutants.
G. Glean Air Act
Hydrofracking operations involve the emission of a variety of
volatile organic compounds (VOCs) and methane: pollutants that are
harmful to public health and worsen climate change.”” The CAA*̂ ‘
grants the EPA the authority to regulate emissions from stationary
sources such as gas wells.”̂ With respect to emissions from
54. Attachment to memorandum from James Hanlon, Dir. of the EPA’s
Office of Wastewater Mgmt., to the EPA Regions, Natural Gas Drilling
in the Marcellus Shale NPDES Program Frequently Asked Questions, at
6 (Mar. 16, 2011), available at http://www.epa.gov/npdes/pubs/hydro
fracturing_faq .
55. Jason Obold, Leading by Example: The Fracturing Responsibility and
Awareness of Chemicals Act of 2011 as a Catalyst for international
Drilling Reform, 23 COLO. J. lNT’b ENVTL. L. & POL’Y 473, 486 (2012)
(“The CWA has been successful at regulating the surface activities of
hydraulic fracturing operations . . . .”).
56. fd.
57. Rehecca Jo Reser & David T. Ritter, State and Federal Legislation and
Regulation of Hydraulic Fracturing, ADVOCATE: TEX. STATE BAR
LiTic. SECTION REPORT, Winter 2011, at 31, 32.
58. Id. at 32 n.l6.
59. Id.
60. See REVISED DRAFT S C E I S , supra note 3, at 7-46 (defining VOCs and
how they affect hydrofracking operations).
61. 42 U.S.C. §§ 7401-7671q (2006).
62. 42 U.S.C. §7411(a)(3) (“The term ‘stationary source’ means any
building, structure, facility, or installation which emits or may emit any
air pollutant.”).
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hydrofracking operations, the EPA has the authority to demand
reductions in Hazardous Air Pollutants'” and VOCs,’^ including
methane.”^ The CAA sets National Ambient Air Quality Standards
(NAAQS) and seeks nationwide attainment through both technology-
based and health-based standards.””
On April 17, 2012, the EPA created the first national air quality
standards for hydraulically fractured natural gas wells, designed to
reduce harmful emissions while allowing for responsible industrial
growth.”^ These rules require compliance with new emissions
standards for natural gas hydrofracking wells, storage tanks, and
other oil and gas equipment, to be achieved through the use of
“proven technologies and best practices that are in use today. “””̂ The
EPA anticipates that these regulations, when fully effective, will
achieve a 95 percent reduction of VOCs from new or modified wells,
accomphshed through a process known as “green completion,” which
utilizes speciahzed machinery to separate gas and liquid hydrocarbons
from flowback fluid.”^ The EPA claims that the new rules will provide
the oil and gas industry with savings of up to $15 million in 2015,™
63. EPA, OVERVIEW OF FINAL AMENDMENTS TO AIR REGULATIONS FOR
THE OIL AND NATURAL GAS INDUSTRY 4, available at http://www.
epa.gov/airquality/oilandgas/pdfs/20120417fs [hereinafter OVERVIEW
OF AIR REGULATION AMENDMENTS] (“EPA also must set standards for
emissions of air toxics, also called hazardous air pollutants. Air toxics
are pollutants known or suspected of causing cancer and other serious
health effects.”).
64. Id. (“The Clean Air Act requires EPA to set new source performance
standards (NSPS) for industrial categories that cause, or significantly
contribute to, air pollution that may endanger public health or welfare.
EPA is required to review these standards every eight years. The
existing NSPS—for VOCs and SO2—were issued in 1985.”).
65. Id. at 2 (“Methane, the primary constituent of natural gas, is a potent
greenhouse gas—more than 20 times as potent as carbon dioxide when
emitted directly to the atmosphere. Oil and natural gas production and
processing accounts for nearly 40 percent of all U.S. methane emissions,
making the industry the nation’s single largest methane source.”).
66. 40 C.F.R. pt. 50 (2012) (setting National Ambient Air Quality
Standards for six principal pollutants: carbon monoxide, lead, nitrogen
dioxide, ozone, particulate pollution, and sulfur dioxide).
67. OVERVIEW OF AIR REGULATION AMENDMENTS, supra note 63, at 1.
68. Oil and Natural Gas Air Pollution Standards, EPA, http://www.epa.
gov/airquality/oilandgas (last visited Apr. 10, 2013).
69. OVERVIEW OF AIR REGULATION AMENDMENTS, supra note 63, at 1.
70. Id. (“EPA’s analysis of the rules shows a cost savings of $11 to $19
million when the rules are fully implemented in 2015.”). The oil and gas
industry largely contests these economic projections and expresses
concern about overregulation. “While we understand that EPA is
required by law to periodically evaluate current standards, this sweeping
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created by the recovery of gas and condensate that would have
otherwise been lost.”̂ ‘ The EPA requires that all extraction companies
be in compliance with “green completion” requirements by January 1,
2015.”’̂ Meanwhile, companies are required to utilize combustion
devices, or “flaring,” to reduce their carbon emissions/~*
D. Comprehensive Environmental Response, Compensation, and
Liability Act
CERCLA grants the E P A authority to require the cleanup of
hazardous waste sites.^” CERCLA creates a federal “Superfund” to
support remedial actions taken by government entities, and establishes
a process by which federal and state governments, along with private
parties, can bring suit against “potentially responsible parties” (PRPs)
for the release of a “hazardous substance.”‘^
CERCLA explicitly excludes “petroleum, including crude oil . . .
natui’al gas, [and] natural gas liquids” from the definition of “hazardous
substance.”™ Despite the “petroleum exception,” the EPA may have
authority to impose future liability upon oil and gas drillers for
remediation costs for contamination because hydrofracking fluid
contains nonpetroleum substances/^ Although the current regulatory
scope under CERCLA is ambiguous, it is clear that the EPA possesses
the authority to conduct investigations under CERCLA, at the very
least, and may be authorized to regi.üate nonpetroleum pollution under
set of potentially unworkable regulations represents an overreach that
could, ironically, undercut the production of American natural gas, an
abundant energy resource that is critical to strengthening our nation’s
air quality.” Press Release, Marcellus Shale Coalition, Kathryn Z.
Klaber, MSC Statement on Proposed EPA Air Regulations (July 28,
2011), http://marceUuscoalition.org/2011/07/nisc-statement-on-proposed
-e pa-air-regulations.
71. OVERVIEW OF AIR REGULATION AMENDMENTS, supra note 63, at 2.
72. EPA, SUMMARY OF”‘ KEY CHANGES TO THE NEW SOURGE
PERFORM ANGE STANDARDS 1, available at http://www.epa.gov/air
quality/oilandgas/pdfs/20120417changes .
73. Id.; see abo Timothy Gardner S¿ Ayesha Rascoe, Fracking Rules Let
Drillers Flare Till 2015, REUTERS (Apr. 1.8, 2012, 4:31 PM), http://
www.reuters.com/article/2012/04/18/us-usa-fTacking-emissions-idUSBRE
83H0UH20120418.
74. 42 U.S.C. §§ 9601-9675 (2006).
75. 42 U.S.C. §§ 9601(14), 9607(a); see also EPA, PRP SEARCH MANUAL
(Sept. 30, 2009), available at http://www.epa.gov/oecaerth/resources/
pubiications/cleanup/superfund/prpmanual/prp-search-man-cmp-09b .
76. 42 U.S.C. § 9601(14).
77. John C. Martin et al.. Fractured Fairy Tales: The Context and Regulatory
Constraints for Hydraulic Fracturing, in DEVELOPMENT ISSUES IN MAJOR
SHALE PLAYS 3-1, 3-13 (Rocky Mtn. Min. L. Found. 2010).
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the same act.’^ The difficulty of determining the chemical makeup of
hydrofracking fluids may preclude the EPA from determining the
requisite nonpetroleum or hazardous classification of the fluid. This
difficulty can be overcome by an EPA requirement that gas drilhng
companies disclose the chemicals used so that the agency can properly
discharge its regulatory functions imder CERCLA.
E. Resource Conservation and Recovery Act
Passed by Congress in 1976, the RCRA grants the EPA the
authority to regulate all aspects of hazardous waste generation,
transportation, treatment, storage, and disposal.̂ ^ RCRA is
complimentary to CERCLA: the former is a preventative “cradle-to-
grave” statute and the latter is a remedial statute. Among other
related requirements, RCRA creates disclosure and safety standards
meant to encourage the reduction of such waste and the use of
nontoxic alternatives.*” RCRA also established a national framework
to manage nonhazardous solid wastes and underground storage
tanks.” Subchapter III of RCRA grants the EPA authority to
establish safeguards and waste management procedures to regulate
and prevent hazardous wastes.*^
Congress and the EPA reached an agreement in 1988 to exempt
oil and gas from RCRA regulation in response to heavy industry,
lobbying efforts.^ Subchapter III of RCRA explicitly exempts wastes
generated from oil and gas exploration and production^ and imposes
78. See id. (discussing the EPA’s “investigative authority” during a
hydrauMc fracturing incident in Pavillion, Wyoming).
79. 42 U.S.C. §§ 6901-6992 (2006).
80. See 42 U.S.C. §§ 6922(b) (discussing waste minimization programs); see
also EPA, RCRA: REDUCING RISK FROM WASTE 2 (Sept. 1997),
available at http://www.epa.gov/osw/inforesources/pubs/risk/risk-l
(“The primary goals of RCRA are to: Protect human health and the
environment from the potential hazards of waste disposal. Conserve
energy and natural resources. Reduce the amount of waste generated.
Ensure that wastes are managed in an environmentally sound manner.”).
81. 42 U.S.C. §§ 6941-6949a (“State or Regional [nonhazardous] Solid
Waste Plans”); § 6991 (“Regulation of Underground Storage Tanks”).
82. 42 U.S.C. §§ 6921-6939g (“Hazardous Waste Management”).
83. Jennifer Dixon, EPA Said to Bow to Political Pressure in Oil Wastes
Ruling, ASSOCIATED PRESS (July 19, 1988, 12:49 AM), available at
http://www.apnewsarchive.com/1988/epa-said-to-bow-to-political-pressure
-in-oil-wastes-ruling/id-87790d67435a0ba3eble5ecc5ce86c9c.
84. 42 U.S.C. § 6921(b)(2) (“[W]astes associated with the exploration,
development, or production of crude oil or natural gas or geothermal
energy shall be subject only to existing State or Federal regulatory
programs.”).
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strict standards upon transporters.^ This exemption was originally a
temporary measure set by Congi-ess but became permanent after the
EPA, at Congress’s urging, conducted a study that determined that
regulation of oil and gas wastes was unwarranted under RCRA.*”*
Thus, although hydrofracking fluids may contain toxic chemicals
ordinarily regulated under RCRA, the EPA lacks the authority to
regulate them.̂ ^
F. Endangered Species Ad
Additional federal authority to regulate hydrofracking may be
contained in the ESA.^ Passed in 1973, the ESA was designed to
protect both endangered and threatened species, as well as the
habitats on which they depend.**’* The ESA requires the Secretary of
the Interior, advised by the Fish and Wildlife Service and the
National Marine Fisheries Service, to give the “highest priority” to
protecting endangered species.’-̂ ° The Secretary of the Interior has the
authority to list alt terrestrial and freshwater species as either
“endangered” or “threatened,” and the Secretary of Commerce has
the equivalent authority for marine life.’-*’ All species listed as
“endangered” and most species listed as “threatened,” or “likely to
become an endangered species within the foreseeable future,”‘*’̂ are
protected from “take””-‘”‘ by public or private actors.”” Federal agency
85. 42 U.S.C. § 6923 (“Standards applicable to transporters of hazardous
waste.”).
86. Clarification of the Regulatory Determination for Wastes from the
Exploration, Development and Production of Crude Oil, Natural Cas
and Ceothermal Energy, 58 Fed. Reg. 15,284 (Mar. 12, 1993) (“[Tjhis
document only further clarifies the status of these wastes under the
RCRA . . . hazardous waste exemption . . . and does not alter the scope
of the current exemption in any way.”).
87. In spite of legislative inaction, the Obama administration is set to
review petitions to apply RCRA to produced waters and hydrofracking
fluid. See D’Angelo, supra note 16.
88. 16 U.S.C. §§ 1531-1544 (2006).
89. 16 U.S.C. § 1531(b)
90. TVA V. Hill, 437 U.S. 153, 174 (1978) (“[E]xamination of the language,
history, and structure of the [ESA] indicates beyond doubt that
Congress intended endangered species to be afforded the highest of
priorities.”).
91. 16 U.S.C. § 1533(a)(l)-(2).
92. 16 U.S.C. § 1532(6), (20).
93. 16 U.S.C. § 1532(19) (“The term ‘take’ means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage
in any such conduct.”).
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actions are not permitted to “take” or jeopardize any listed species,
not only by autonomous agency actions but also by permitting actions
of others^^—a universal need with respect to hydraulic fracturing.
Additionally, the wildlife agencies designate “critical habitats” for
each endangered or threatened species listed in the Federal Register,
specifying the range of the particular species.̂ ^ Agencies or permitted
parties are prohibited firom engaging in, funding, or authorizing any
action that would modify, adversely affect, or destroy a designated
habitat.^^ The Secretary is required to conserve and protect an
endangered or threatened species until the species is no longer
endangered or threatened.”*
The fragmentation of the natural landscape caused by road
building, heavy road use, pipeline construction, and surface-water
pollution may constitute “take” of endangered species, which might be
preventable through enforcement of the ESA provisions. In fact, many
of the most heavily fracked areas of the country contain some of the
most endangered species.”” The Secretary of the Interior might be able
94. See 16 U.S.C. § 1538(a) (stating that “taking” endangered animals is
“unlawful for any person subject to the jurisdiction of the United States”).
Similar to the ESA, the Migratory Bird Treaty Act protects migratory
bird species from dehberate or incidental “take.” 16 U.S.C. §§ 703-712
(2006). Although the Migratory Bird Treaty Act does not contain a
provision to protect-‘ a particularized habitat, it imposes strict Uability
upon any person for the death of a migratory bird, even if the death
occurs as a result of the bird drinking water from a legal retaining pond.
See United States v. FMC Corp., 572 F.2d 902, 908 (2d Cir. 1978) (“[T]he
statute does not include as an element of the offense ‘wilfully, knowingly,
recklessly, or neghgently.’ . . . Congress recognized the important pubhc
policy behind protecting migratory birds; FMC engaged in an activity
involving the manufacture of a highly toxic chemical; and FMC failed to
prevent this chemical from escaping into the pond and killing birds. This
is sufficient to impose strict liability on FMC”).
95. 16 U.S.C. § 1536(a)(2); see also Hill, 437 U.S. at 173 (“One would be
hard pressed to find a statutory provision whose terms were any plainer
than those in . . . the Endangered Species Act. Its very words
affirmatively command all federal agencies ‘to insure that actions
authorized, funded, or carried out by them do not jeopardize the
continued existence’ of an endangered species or ‘result in the
destruction or modification of habitat of such species.'” (quoting 16
U.S.C. § 1536)).
96. 16 U.S.C. § 1533(a)(3)(A)-(B) (requiring use of the “best scientific data
available” when determining a species’s critical habitat).
97. 16 U.S.C. § 1536(a)(2).
98. Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d 257, 261 (9th
Cir. 1984), cert, denied sub nom. Nevada v. Hodel, 470 U.S. 1083 (1985).
99. See Press Release, American Rivers, Upper Delaware Named America’s
Most Endangered River (June 2, 2010), available at http://www.
americanrivers.org/newsroom/press-releases/2010/teton-river-most-endang
ered-2010-6-2-2010.html (discussing how hydrofracking around a national
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to use the ESA to minimize the effect of hydrofracking on protected
species.’™ Indeed, the mere potential of hsting the sagebrush hzard of
New Mexico afforded Secretary of the Interior Ken Salazar the
leverage necessary to secure “unprecedented commitments to
voluntary conservation agreements” with the oil and gas industry.”*’
C. Toxic Substances Control Act
TSCA grants the EPA authority to require companies to report the
health, safety, and exposure information of chemical substances and
mixtm-es to the EPA.'”^ On November 23, 2011, the Obaina
administration pai’tially granted a section 21 petition from Earthjustice”^
requesting a rulemaking under sections 4 and 8, which would require
manufactiu’ers and processors to disclose chemical mixtures used during
all hydrofracking operations and to conduct toxicity testing on named
chemicals.’*’ The petition cited numerous federal regulatory “gaps,” or
oil and gas exemptions in the SDWA and RCRA, and demanded
park system near the Upper Delaware River is contaminating the water
and threatening “several endangered, at risk, or rare species Hvjing] in ihe
river and along its banks”).
100. Kalyani Robbins, Awakening the Slumbering Ciant: How Horizontal
Drilling Technology Brought the Endangered Species Act to Bear on
Hydraulic Fractumng, 63 CASE W . R E S . L. REV. 1143 (2013).
101. Following the Fish and Wildlife Service’s proposal to list the dune
sagebrush lizard in December 2010, the state governments of Texas and
New Mexico, private landowners, and oil and gas companies developed
an unprecedented 650,000-acre conservation plan to preserve the
shinnery oak dune habitat of the lizard. Upon the required “best
available science” analysis. Interior Secretary Ken Salazar stated that
the lizard faces no imminent threat of becoming endangered. The
Service will continually monitor the progress and efficacy of the
conservation efforts, retaining the right to reevaluate the listing
determination at any time. News Release, U.S. Dept. of the Interior,
Landmark Conservation Agreements Keep Dunes Sagebrush Lizard Off
the Endangered Species List in NM, TX (June 13, 2012), available at
http://www.fws.gov/soiithwest/es/Documents/R2ES/NR_for_DSL_Fi
nal_DetenTiination_13June2012 .
102. See 15 U.S.C. §§ 2601-2692 (2006) (including the authority under
section 2603 to require premanufacture notice for “new chemical
substances,” and the authority under § 2607 to regulate “inventory”
chemicals).
103. Petition from Earthjustice to EPA, Citizen Petition under Toxic
Substances Control Act Regarding the Chemical Substances and
Mixtures Used in Oil and Cas Exploration and Production (Aug. 4,
2011), available at http://www.epa.gov/oppt/chemtest/pubs/Section_
21_Petition_on_Oii_Cas_DrilIing_and_Fracking_ChemicaIs8.4.20U .
104. Eric Waeckerlin &; Joe Creen, Hydraulic Fracturing & TSCA: EPA’s
Surprising Move and its Sweeping Implications, LiSGAL BACKGROUNDER,
Feb. 24, 2012, at 1.
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further federal oversight on disclosure for chemicals used in
hydrofracking operations.'”^ Although the EPA claims that the new
rulemaking will “complement” current state disclosure requirements,
the interplay between the proposed rule and state or other federal
regulations is yet to be seen.'”^
II. N E W Y O R K : L O C A L I T I E S W I N R O U N D O N E ,
E S C A P I N G P R E E M P T I O N ‘ ” ^
The legislature in New York, like those in most states where
hydrofracking occurs, has adopted comprehensive legislation to regulate
oil and gas operations. As opposed to the federal government, whose
jurisdiction is somewhat constrained by its limited jurisdiction over
matters of property, state governments have plenary authority to
regulate their resources. The legislatures of all fifty states have also
created local governments and given them legal authority of various
tjqjes, including the power to adopt comprehensive plans, zoning, and
other land use regulations. Under that authority, localities typically
regulate industrial land uses, such as gas drilling operations, by either
prohibiting them altogether or assigning them to appropriate areas
within their jurisdiction where the intensity of industrial activities
does not adversely affect neighboring property values or the quality of
life in other parts of the community.
New York’s oil and gas statute contains language that at first
blush seems to preclude the regulation of hydrofracking under local
land use authority. The New York Oil, Gas and Solution Mining Law
(OGSML)'”« provides that
[t]he provisions of this article shall supersede all local laws or ‘
ordinances relating to the regulation of the oil, gas and solution
mining industries; but shall not supersede local government
jurisdiction over local roads or the rights of local governments
under the real property tax law.'”^
Industry attorneys, of course, read this language as expressly
preempting local land use control of the location and local impacts of
105. Id. at 2.
106. The Obama administration is also set to review petitions for increased
hydrofracking regulation under RCRA, the Emergency Planning and
Community Right to Know Act (EPCRA), and the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA). See D’Angelo, supra note 16.
107. Portions of this Part are adapted from John R. Nolon & Victoria
Polidoro, Hydrofracking: Disturbances Both Geological and Political:
Who Decides?, 44 URB. LAW. 507 (2012).
108. N.Y. ENVTL. CONSERV. LAW § 23-0303 (McKinney 2012).
109. Id. § 23-0303(2).
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gas wells. Some localities, whose lawyers interpret the language
differently, have enacted vai-ious controls on the location of gas wells
to protect the integrity of their land use plans and their local
environment. Landowners and the industry, in turn, have sued two
towns that banned gas drilling by amending their local zoning
ordinances.”” Both communities won their cases in the lower courts,
which found neither express nor implied preemption of local control of
hydrofracking in the OGSML.'” Deciding the underlying issues in
these cases will take years as they wind their way through the New
York court system.
The holdings of these first decisions are consistent with the
general understanding of local control and state preemption in New
York. Zoning authority can be curtailed when the state has
demonstrated the intent to preempt an entire field of regulation.”^
This prevents inconsistent local laws from “inhibit[ing] the operation
of the State’s general law and thereby thwart[ing] the operation of the
State’s overriding policy concerns.””^ The intent to preempt can be
explicit or can be implied through review of the state’s regulatory
scheme regarding a particular subject.””
Article IX, section 3(c) of the New York Constitution, however,
provides that “[r]ights, powers, privileges and immunities gi’anted to
local governments by this article shall be liberally construed.””^ This
constitutional requirement has also been codified by section 51 of the
Municipal Home Rule Law, which provides that home-rule powers
“shall be liberally construed.””” These requirements of liberal
construction apply to towns’ powers to enact zoning laws, which are
110. New York law delegates essentially the same degree of land use power to
three of the four types of local government that the state has created:
villages, towns, and cities. References in this Article to “towns” refer to
all three of these types of localities, unless the reference is to a
particular community. Courities in New York are considered to be local
governments but do not have the authority to adopt zoning.
111. Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458, 474
(Sup. Ct. 2012); Cooperstown Holstein Corp. v. Town of Middlefield,
943 NY.S.2d 722, 730 (Sup. Ct. 2011). New York’s Supreme Court is
the state’s trial-level court of general jurisdiction.
112. See Jancyn Mfg. Corp. v. Cnty. of Suffolk, 518 N.E.2d 903, 905 (NY.
1987) (“A local law may be ruled invalid . . . where the State has clearly
evinced a desire to preempt an entire field thereby precluding any
further local regulation.”).
113. ¡d. at 906.
114. See id. at 907 (holding that no preemption existed because the
regulatory department did not think the statute was meant to preempt
local legislation).
115. N.Y. CONST, art. ÍX, § 3(c).
116. N.Y. MuN. HOME RULE LAW § 51 (McKinney 2012).
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derived not only from specific delegations of power contained in the
Town Law,”^ but also the Municipal Home Rule Law.”* The state’s
highest court has recognized that “[o]ne of the most significant
functions of a local government is to foster productive land use within
its borders by enacting zoning ordinances.””‘ These provisions calling
for liberal interpretation of local power and extolling the importance
of local land use powers create an implicit presumption against
preemption.
The crux of the conflict between state and local power over gas
driUing in New York involves the interpretation of the term “regulation”
in the ÖGSML. If zoning laws, which regulate the use of land by, and the
location of, gas drilhng facihties, axe viewed as laws “relating to the
regulation o f the industry, they are preempted by the language of the
OGSML.’̂ ” If not, municipalities may use their zoning powers to identify
appropriate locations in the community for such driUing and impose
standards to mitigate local impacts of hydrofracking, or, in proper
instances, to prevent hydrofracking altogether.
When faced with a potential conflict between state and local zoning
laws. New York, courts attempt to harmonize local and state legislative
enactments, “thus avoiding any abridgment of the town’s powers to
regulate land use thirough zoning powers expressly delegated” in the
constitution and implemented through state statutes.’^’ It is well settled
that “[t]he mere fact that a state regulates a certain area of business
does not automatically pre-empt all local legislation which apphes to
that enterprise.'”^^
117. 5ee N.Y. TOWN LAW §§261-263 (McKinney 2012) (granting town
boards the power to regulate the size, style, density, and use of
structures for a variety of purposes); see also N.Y. GEN. CITY LAW
§ 20(24)-(25) (McKinney 2012) (granting this power to cities); N.Y.
VILLAGE LAW §§ 7-700, 7-702 (McKinney 2012) (granting this power to
the board of trustees of a village); Robert E. Kurzius, Inc. v. Inc. Vill. of
Upper Brookville, 414 N.E.2d 680, 682 (N.Y. 1980) (noting the
delegation of zoning power to village boards).
118. See, e.g., Kamhi v. Town of Yorktown, 547 N.E.2d 346, 351 (N.Y. 1989)
(recognizing towns’ power to enaict zoning rules pursuant to section 10
of the Municipal Home Rule Law); Pete Drown, Inc. v. Town Bd. of
Ellenburg, 591 N.Y.S.2d 584, 585 (App. Div. 1992) (same).
119. DJL Rest. Corp. v. City of New York, 749 N.E.2d. 186, 191 (N.Y.
2001).
120. N.Y. ENVTL. CONSERV. LAW § 23-0303(2) (McKinney 2012).
121. Frew Run Cravel Prods., Inc. v. Town of Carroll, 518 N.E.2d 920, 924
(N.Y. 1987).
122. Envirogas, Inc. v. Town of Kiantone, 447 N.Y.S.2d 221, 222 (Sup. Ct.
1982), aff’d, 454 N.Y.S.2d 694 (App. Div. 1982), motion for leave
denied, 444 N.Y.2d 1013 (N.Y. 1982).
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The New York coiu’ts have experience looking at the distinction
between zoning laws and laws that regulate business operations,
including mining. The state’s Mined Land Reclamation Law (MLRL)
contained the following preemption provision, which is similar to the
language found in the OGSML:
For the purposes stated herein, this title shall supersede ail
other state and local laws relating to the extractive mining
industry; provided, however, that nothing in this title shall be
construed to prevent any local government from enacting local
zoning ordinances or other local laws which impose stricter
mined land reclamation standards or requirements than those
found herein.’^
In Frew Run Gravel Products, Inc. v. Town of Carroll, the court
found that the legislature, in enacting the MLRL, did not intend to
preempt the provisions of a town zoning law that limited the areas of
town where sand and gi-avel mines could be established.’^” In making
its determination, the com’t conducted a three-part inquiry, looking
first at the plain language of the statute, followed by the legislative
history, and then finally to the purpose and intent of the statute.’^^
Looking at the plain meaning of the phrase “relating to the extractive
mining industry,” the court “[could not] interpret the phrase . . . as
including the Town of Carroll Zoning Ordinance.'”^^ The purpose of a
zoning ordinance is to regulate land use, and in doing so, it
“inevitably exerts an incidental control over any of the particular uses
or businesses which, like sand and gravel operations, may be allowed
in some districts but not in others.'”” The court found that this type
of incidental control through zoning was “not the type of regulatory
enactment relating to the ‘extractive mining industry’ which the
Legislature could have envisioned as being within the prohibition of
the statute.'”^ In so finding, the court recognized the différence
between a zoning law and “[ljocal regulations dealing with the actual
operation and process of mining[, which] would frustrate the statutory
purpose of [the MLRL’s standardized regulations].'”^^
123. Frew Run, 518 N.E.2d at 921 (citing N.Y. ENVTL. CONSERV. LAW § 23-
2703(2)).
124. See id. at 923 (“There is nothing in the Mined Land Reclamation Law
or its history indicating . . . the preemptive effect petitioner urges.”).
125. Id. at 922.
126. Id.
127. Id.
128. Id.
129. Id. at 923.
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In August 2011, the Town of Dry den amended its zoning
ordinance to prohibit natural gas drilling.”” The ordinance added
definitions for “Natural Gas,” “Natural Gas and/or Petroleum
Exploration,” and “Natural Gas Exploration and/or Petroleum
• Production Wastes,” and then prohibited the “Exploration for or
Extraction of Natural Gas and/or Petroleum” anywhere in the
town.’^’ The law also purports to invalidate any “permit issued by
any local, state[,] or federal agency, commission[,] or board for a use
which would violate the prohibitions of” the ordinance. ‘̂ ^
The Town of Middlefield’s land uses are predominately
agriculture, forests, and low-density residential. After studying the
potential impact of heavy industry on its rural environs and water
supply,’̂ ^ in June 2011 it amended its comprehensive plan and zoning
law to prohibit heavy industry throughout the town. Heavy industry
is broadly defined and includes “drilling of oil and gas wells” as well
as “chemical manufacturing,” “petroleum and coal processing,” and
“steel manufacturing.'”*”
The Town of Dry den’s law was challenged by Anschutz
Exploration Corporation, a Golorado-based driller and developer of
natural gas wells. The Town of Middlefield’s law was coritested by
Gooperstown Holstein Corporation, a local dairy operation that has
130. See Minutes, Town of Dryden Special Town Board Meeting, at 1, 5-15
(Aug. 2, 2011), available at http://dryden.ny.us/Board Meeting
Minutes/TB/2011/TB2011-08-02 (voting 5-0 in favor of amendments
“claxifying the town’s prohibition of natural gas exploration ajid
extraction”).
131. Notice, Town of Dryden Notice of Adoption of Amendments to Zoning
Ordinance, at 1, 2 (Aug. 3, 2011), available at http://documents.food
andwaterwatch.org/doc/Frack_Actions_DrydenNY (“No land in
the Town shall be used: to conduct any exploration for natural gas
and/or petroleum; to drill any well for natural gas and/or petroleum; to
transfer, store, process or treat natural gas and/or petroleum; or to
dispose of natural gas and/or petroleum exploration or production
wastes; or to erect any derrick, building, or other structure; or to place
any machinery or equipment for such purposes.”).
132. Id.
133. See GREENPLAN, INC., LAND USE ANALYSIS: HEAVY INDUSTRY AND
OIL, GAS OR SOLUTION MINING AND DRILLING 4 (2011), available at
http://www.otsego2000.org/documents/forwebsiteMiddlefieldLandUseAnaly
sis-Greenplan (a land use analysis prepared for the Town Board of
the Town of Middlefield that provides information on the potential
effects of zoning amendments).
134. Middlefield, N.Y., The Town of Middlefield Zoning Law, Local Law No.
1, art. II, § B(8) (2011), available at http://www.middlefieldny.com/
uploads/l/2/6/8/12682437/zoning_law_061411_2011_final .
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leased • approximately 400 acres of its land for natural gas
development.’^^
On February 21, 2012, the New York Supreme Court, Tompkins
Connty, upheld the Town of Dryden’s total ban on hydroft-acking
within its borders.’̂ ‘̂ The court’s holding was straightforward: “In
light of the similarities between the OGSML and the MLRL as it
existed at the time of Matter of Frew Run, the court is constrained to
follow that precedent in this case.'”‘*^ The court found that the
OGSML did not expressly preempt local zoning and that the town’s
zoning amendment did not regulate gas production; rather, it
regulated land use and not the operation of gas mining.
The coui’t noted that “[njone of the provisions of the OGSML
address traditional land use concerns, such as traffic, noise or industry
suitabihty for a particular community or neighborhood.'””‘̂ It cited
other preemptive statutes with provisions requiring the relevant state
agency to consider the traditional concerns of zoning in deciding
whether a permit is to be issued. “Under this construction, local
governments may exercise their powers to regulate land use to
determine where wittiin their borders gas drilling may or may not take
place, while [the Department of Environmental Conservation] regulates
all technical operational matters on a consistent statewide basis in
locations where operations are permitted by local law.'””* The provision
of the local law that invalidated any other permits authorizing drilling
was found invalid as preempted by the OGSML and was severed ft’orn
the law, while the other provisions were left in place. ‘**”
Three days later, on February 24, 2012, the Supreme Court in
Otsego County issued a decision in the Middlefield case gi-anting
summary judgment in favor of Middlefield, upholding the town’s
zoning law that banned natural gas drilling.”” After thoroughly
reviewing the legislative history of the OGSML, the court found no
provision in it to support Holstein’s position, stating,
135. Verified Complaint at 1-2, Cooperstown Holstein Corp. v. Town of
Middlefield, 943 N.S.Y.2d 722 (Sup. Ct. 2012) (No. 2011-0930), available
at http://catskillcitizens.org/learnmore/VsTownOfMiddlerield .
136. Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458, 474
(Sup. Ct. 2012).
137. Id. at 466.
138. Id. at 470.
139. Id. at 471.
140. The court found that the provision could be severed without Impairing
the underlying purpose of the zoning amendment. Id. at 474.
141. Cooperstown Holstein Corp. v. Town of Middlefield, 943 N.Y.S.2d 722,
730 (Sup. Ct. 2011).
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Neither the plain reading of the statutory language nor the
history of [the OGSML] would lead this court to conclude that
the phrase “this article shall supersede all local laws or
ordinances relating to the regulation of the oil, gas and solution
mining industries” was intended by the Legislature to abrogate
the constitutional and statutory authority vested in local
municipalities to enact legislation affecting land use.'”^
In the court’s analysis of the legislative history of the EGL, it
found that the intention of the legislature was not to preempt the
statutory authority vested in local municipalities to enact legislation
affecting land use.”’^ Rather, the legislature’s intent was to impose
uniform statewide oversight to ensure and promote efficient utilization
of a state resource.”’^ The court analyzed the policy of the state at the
time of original enactment of article 3-A of the Environmental
Gonservation Law in 1963.”’̂ It found that the provisions “fail to
specifically address therein any land use issues which would otherwise
be the. subject of a local municipality’s zoning authority as an exercise
of its police powers.”””‘ Rather, it concluded that the legislatiö^n
focused the Department of Gonservation’s (now the Department of
Environmental Gonservation, or DEG) efforts on matters that were
“regulatory in nature,” such as spacing units, integration of oil and
gas pools and fields, oil and gas leases, and the plugging of old
wells.'”^ The court also relied on case law interpreting the “strikingly
similar” provision of the MLRL, which found that “in the absence of a
clear legislative intent to preempt local control over land use, the
[MLRL] could not be read as preempting local zoning authority.'””*
Of singular importance in the Middlefield decision is the court’s
understanding of the state legislature’s intent when it initially
adopted the Environmental Gonservation Law in the early 1960s. At
that time, local zoning was forty years old and had been preceded by
decades of adopting local nuisance abatement laws prior to the advent
of zoning. It seems imprinted in the mind of the legislature to protect
local control, except where the’ legislature expressly states that
preemption of local prerogatives is essential to furthering overriding
state interests. In the Dryden and Middlefield decisions, the judiciary
142. Id. at 728 (quoting N.Y. ENVTL. CONSERV. LAW § 23-0303(2)).
143. Id.
144. Id. at 728-29.
145. Id. at 724-26.
146. Id. at 725.
147. Id. at 729 (quoting Gernatt Asphalt Prods., Inc. v. Town of Sardinia,
664 N.E.2d 1226, 1234 (N.Y. 1996)).
148. Id.
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in New York followed its trend to harmonize two legislative regimes—
one intended to impose uniform regulations on the operation of gas
drilling and the other designed to control local land use impacts,
honoring the statutes that delegate extensive land use control to
towns as well as the home-rule provisions of the State Constitution
that promise localities control over their local property, affairs, and
government.
The assessment by the two lower courts in Dryden and
Middlefield of the legislative history and preemptive effect of the
OGSML was affirmed by the Third Department Appellate Division on
May 2, 2013, when it upheld both opinions.””* In affirming the Dryden
decision by the Supreme Court, the Appellate Division made it clear
that “zoning ordinances ai’e not the type of regulatory provision that
the Legislature intended to be preempted by the OGSML”;’̂ ” that
“the Legislature’s intention was to insure uniform statewide standards
. . . in an effort to increase efficiency while minimizing waste”;’^’ and
that “nothing in the language, statutory scheme or legislative history
of the statute indicat[es] an intention to usurp the authority
traditionally delegated to municipalities to establish permissible and
prohibited uses of land within their jurisdictions.'”^^ By distinguishing
the purposes of land use regulation from “regulating the actual
operation, process and details of the oil, gas and solution mining
industries, ‘the statutes may be harmonized, thus avoiding any
abridgment of [a] town’s powers to regulate land use through zoning
powers expressly delegated in the Statute of Local Governments . . .
and the Town Law.””̂ -“*
It was not lost on the court that the matters regulated by the state
under the OGSML ai’e not the mattere traditionally regulated by
rnimicipal zoning and land use régulations. Provisions of the OGSML
“do not addi’ess traditional land use considerations, such as proximity
149. Norse Energy Corp. USA v. Town of Dryden, No. 515227, slip op. at 15
(N.Y. App. Div. May 2, 2013) (“Thus, we hold that the OGSML does
not preempt, either expressly or impiiedly, a municipality’s power to
enact a local zoning ordinance banning all activities related to the
exploration for, and the production or storage of, natural gas and
petroleum within its borders.”); Cooperstown Holstein Corp. v. Town of
Middlefield-, No. 515498, slip op. at 3 (“For the reasons set forth in
Matter of Norse Energy Coi-p. USA v. Town of Dryden, we find
plaintiffs claim to be without merit and affirm Supreme Court’s
judgment declaring that defendant’s zoning is valid.” (citation
omitted)).
150. Dryden, slip op. at 8.
151. Id. at 10-11.
152. Id. at 11.
153. id. (quoting Frew Run Cravel Prods., Inc. v. Town of Carroll, 518
N.E.2d 920, 924 (N.Y. 1987) (alterations in original)).
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to nonindustrial districts, compatibility with neighboring land use, and
noise and air pollution . . . . [T]he zoning law will dictate in which, if
any, districts drilling may occur, while the OGSML instructs operators
as to the proper spacing of the units within those districts in order to
prevent waste. “‘̂ ” These decisions ratify the importance of local control
of hydrofracking and of identifying methods of state-local coordination
as recommend in Part V.
I I I . P E N N S Y L V A N I A : P R E E M P T I O N T H W A R T E D
The tension between local and state control of hydrofracking
evident in New York is profoundly evident in recent legislative and
judicial decisions in Pennsylvania—the state in the heart of the
Marcellus region.’^^ Under prior state oil and gas law, the state courts
had determined that local governments could regulate but not prevent
hydrofracking under local zoning. Following these judicial decisions,
the state legislature adopted Act 13, which all but preempted local
control.”^° The Act explicitly required local governments to include
hydrofracking as a permitted use in all zoning districts. This Act, in
turn, was invalidated by Robinson Township v. Commonwealth, which
held that it failed to protect neighboring property owners from harm
and made irrational land use classifications.’^^ The power of
municipalities to adopt comprehensive plans and to separate land uses
through zoning, and the derivative rights of landowners, in the
Robinson court’s view, trumped state oil and gas legislation that, on
its face, preempted local regulation.
Under the former Oil and Gas Act in Pennsylvania, municipalities
were permitted to regulate the location of wells within their boundaries
through zoning, but were not allowed to ban wells outright:
Except with respect to local ordinances adopted pursuant to the
. . . Municipalities Planning Code (“MPC”) and the . . . Flood
Plain Management Act, all local ordinances and enactments
purporting to regulate oil and gas well operations regulated by
the act are hereby superseded. No ordinances or enactments
adopted pursuant to the aforementioned acts shall ‘contain
provisions which impose conditions, requirements or limitations
on the same features of oil and gas well operations regulated by
154. Id. at 14.
155. Pennsylvania has been called the “Saudi Arabia of Natural Gas.”
Elizabeth McGowan, Fracking’s Environmental Footprint to Transform
Pennsylvania Landscape, REUTERS (Apr. 25, 2011, 3:30 AM),
http://www.reuters.com/article/2011/04/25/idUS308837987220110425.
156. See 58 P A . CONS. STAT. ANN. § 3303 (West Supp. 2013).
157. Robinson Twp. v. Commonwealth, 52 A.3d 463, 484-85 (Pa. Commw.
Ct. 2012).
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this act or that accomphsh the same purposes as set forth in
this act. The Commonwealth, by this enactment, hereby
preempts and supersedes the regulation of oii and gas wells as
herein defined.’^
The Pennsylvania courts examined the preemptive scope of this
language in two cases decided on the same day in 2009, Huntley &
Huntley, Inc. v. Borough of Oakraont^^^ and Range Resources-
Appalachia, LLC v. Salem Twp.^^ In Huntley,^^* a drilling company,
Huntley & Huntley, sought review of a city council decision denying a
conditional use permit to allow drilling in a single-family residential
zone.’*’̂ The Commonwealth Court held that the locational restrictions
imposed by the Borough of Oakmont upon Huntley were on the same
topic as addressed in the Oil and Gas Act, and were, therefore,
preempted.”‘^ Upon appeal, the Pennsylvania Supreme Court sought
to determine whether the state legislature intended to leave localities
any latitude to regulate oil and gas wells.’^ It reversed the lower
court by determining that local zoning regulated a different aspect of
drilling than the Oil and Gas Act: its location rather than the
technical aspects of drilling.'”^ The Supreme Court found that the
particular language of the Act preempts only ordinances that “impose
conditions, requirements, or limitations on the same features of oil
and gas well operations,” or that “accomplish the same purposes.'”*”^
The court accepted the appellants’ contention that the “very essence
of zoning is the designation of areas where different uses are
permitted, subject to the appropriate level of municipal review,” and
158. 58 P A . CONS. STAT. ANN. § 601.602 (West 1996) (repealed 2012).
159. Huntley, Inc. v. Borough of Oakmont, 964 A.2d 855 (Pa. 2009).
160. Range Resources-Appalachia, LLC v. Salem Twp., 964 Á.2d 869 (Pa.
2009).
161. Huntley, 964 A.2d at 855.
162. Id. at 858.
163. Jd. at 859.
164. Id. at 863 (“[O]ur interpretive task is to examine the particular wording
of this provision, together with any other relevant aspect of the statute,
in order to determine whether the Legislature intended to leave room for
localities to designate certain zoning districts (such as residential ones)
where oil and gcis wells may be prohibited as a general matter.”).
165. Id. at 864 (“[We] conclude that, absent further legislative guidance,
Section 6O2’s reference to ‘features of oil and gas well operations
regulated by this act’ pertains to technical aspects of well functioning
and matters ancillary thereto (such as registration, bonding, and well
site restoration), rather than the well’s location.” (quoting 58 PA. CONS.
STAT. ANN. § 601.602 (1996))).
166. Id. at 863 (quoting 58 PA. CONS. STAT. ANN. § 601.602 (1996)).
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t h a t the legislature explicitly sought to preserve local zoning power by
distinguishing the “technical features of oil and gas operations.'””^
The court in Huntley found that the state’s interest primarily
centered on the efficient extraction and utihzation of the state’s
increasingly valuable natural resource.'”* In contrast, it noted t h a t the
borough’s core interests emanate from police power objectives
designed to protect public safety and welfare: “preserving the
character of residential neighborhoods, and encouraging ‘beneficial
and compatible land uses.”””” In finding t h a t these interests did not
overlap, the court adopted a holding from the Colorado high court:
While the governmental interests involved in oil and gas
development and in land-use control at times may overlap, the
core interests in the legitimate governmental functions are quite
distinct. The state’s interest in oil and gas development is
centered primarily on the efficient production and utilization of
the natural resources in the state. A county’s interest in land-
use control, in contrast, is one of orderly development and use
of land in a manner consistent with local demographic and .
environmental concerns. Given the rather distinct nature of
these interests, we reasonably may expect that any legislative
intent to prohibit a county from exercising its land-use
authority over those areas of the county in which oil
development or operations are taking place or are contemplated
would be clearly and unequivocally stated. We, however, find no
such clear and unequivocal statement of legislative intent in the
Oil and Gas Conservation Act.’™
Thus, while the court acknowledges the presence of some overlap in
purposes, the salient objectives of the local and state governments, it
found, do not confiict.””
In Range Resources, decided on the same day as Huntley, the
court invalidated a local law t h a t regulated the operations of drilling
rather than its location, holding that this aspect of hydrofracking
regulation was preempted by the Oil and Gas Act.”^^ The court
identified numerous examples of “substantive[] overlap” within the
ordinance in question, such as:
167. Id. at 860.
168. Id. at 864-65 (quoting 58 P A . CONS. STAT. ANN. § 601.102 (1996)).
169. Id. at 865.
170. Id. (quoting Bd. of Cnty. Comm’rs v. Bowen/Edwards Assocs., Inc., 830
P.2d 1045, 1057 (Colo. 1992)).
171. Id. at 866.
172. Range Res. Appalachia, LLC v. Salem Twp., 964 A.2d 869, 877 (Pa.
2009).
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permitting procedures specifically for oil and gas wells, . . .
bonding requirements before drilling can begin, . . .
regulat[ion of| well heads, including the capping of the same
once they are no longer in use, . . . regulat[ion of| site
restoration after drilling operations cease, . . . [and] the
requirement of restoring nearby streets to their pre-drilling
conditions regardless of whether the wear and tear on such
roadways was caused by vehicles associated with drilling
Indeed, the court concluded that many of the restrictions imposed
by the ordinance were “even more stringent than the corresponding
provisions of the Act.'”^” Thus, the court found that the ordinance in
question was “qualitatively different” from the corresponding
ordinance in Huntley, which “sought only to control the location of
wells consistent with established zoning principles.'”^^
Since the ordinance not only sought to regulate the same features
as the Oil and Gas Act, but also created regulatory obstacles to
effective implementation of the Act, the court held that the doctrine
of “conflict preemption” apphed.’^” The ordinance “reflect[ed] an
attempt by the Township to enact a comprehensive regulatory scheme
relative to oil and gas development within the municipality” and, as
such, was preempted by the Oil and Gas Act.’^
Following the Huntley and Range Resources decisions, the
Pennsylvania legislature replaced the Oil and Gas Act with Act 13,
containing a revised statutory framework for oil and gas regulation.’̂ ^
The Act explicitly preempted local zoning from regulating hydrofracking,
except with respect to setback requirements in limited aieas.’^” The Act
states:
Notwithstanding any other law to the contrary, environmental
acts are of Statewide concern and, to the extent that they
regulate oil and gas operations, occupy the entire field of
regulation, to the exclusion of all local ordinances. The
Gommonwealth by this section, preempts and supersedes the
173. Id. at 875-76.
174. Id. at 875.
175. Id. at 876.
176. Id. at 877 (citing Nutter v. Dougherty, 938 A.2d 401, 404 (Pa. 2007)).
177. Id. at 875.
178. 58 P A . CONS. STAT. ANN. §§ 2301-3504 (West Supp. 2013).
179. Id. § 3303.
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local regulation of oil and gas operations regulated by the
environmental acts, as provided in this chapter.’*”
While Act 13 ostensibly preserves the municipality’s right to
enact local zoning ordinances, it prohibits local zoning ordinances
from conflicting with chapter 32, which regulates oil and gas
operations.’^’ Among other restrictions imposed upon municipalities,
the Act requires localities to amend zoning to include oil and gas
operations in all zoning districts.’*^ This conformity requirement
creates an obvious and fundamental conflict with the Municipal
Planning Code (MPC). The MPC requires municipalities to adopt
comprehensive plans and to create zoning districts in accordance with
comprehensive plans.’^ Under Act 13, a municipality seeking to shield
a residential area, for example, from potentially dangerous
hydrofracking operations in the interest of public health and welfare
would not be able to do so.
A collection of seven municipalities, private citizens, and
environmental groups challenged the constitutionality of Act 13 in
Robinson Township.’^ The municipalities brought a substantive due
process claim, contending that Act 13 prevented them from creating
zoning ordinances with a rational connection to their comprehensive
plans, as required by the MPC, thus preventing them from fulfilling
their constitutional duty to “protect the health, safety and welfare of
their citizens.'”^*
The court explained that the zoning power was but “an extension
of the concept of public nuisance which protects owners from
activities that interfere with use and enjoyment of their property,'”*^
citing the seminal Village of Euclid v. Ambler Realty case for the idea
that “[l]and use restrictions aim to prevent problems caused by the
‘pig in the parlor instead of the barnyard.””*” Essentially, the Act
required municipalities to create zoning incompatible with their
comprehensive plans; if mining and gas operations were to be included
180. Id.
181. Id.
182. Id.
183. Robinson Twp. v. Commonwealth, 52 A.3d 463, 482 (Pa. Commw. Ct.
2012) (“The MPC requires that every municipality adopt a
comprehensive plan which, among other things, includes a land use plan
on how various areas of the community are to be used.”).
184. Id. at 468 n.3.
185. Id. at 469.
186. Id. at 481.
187. Id. at 481 (quoting Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365,
388 (1926)).
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in all zones, as the Act required, zoning ordinances would inherently
not comport with tlieir comprehensive plans.’^ Thus, the court found,
the state’s interest in regulating hydrofracking processes sits in direct
conflict with local zoning interests. When such substantive due
process conflicts appear, the court held, the judiciary “must accord
substantial deference to the preservation of rights of property
owners. “‘̂ ^ The court stated that
by requiring municipalities to violate their comprehensive plans
for gi’owth and development, [Act 13] violates substantive due
process because it does not protect the interests of neighboring
property owners from harm, alters the character of
neighborhoods and makes irrational classifications—irrational
because it requires municipalities to allow all zones, drilling
operations and impoundments, gas compressor stations, storage
and use of explosives in all zoning districts, and applies
industrial criteria to restrictions on height of structures,
screening and fencing, lighting and noise.””*
Following the Robinson decision, and pending the decision of the
Pennsylvania Supreme Court on appeal,”-” hydrofracking regulation in
Pennsylvania has reverted to the doctrine established in Himtley and
Range Resources. The courts in Pennsylvania, working with different
but seemingly preemptive state oil and gas statutes, came to roughly
the same result as the courts in New York. In both states, the judges
have found ways to harmonize the power of local governments to
adopt local land use restrictions on hydrofracking to promote local
interests with the power of the state to standardize the regulation of
the gas drilling industry.
IV. W E S T VIRGINIA AND OHIO; HYDROFRACKING L A W IN LIMBO
A. West Virginia Gas Regulation and Local Land Use Gontrol
In West Virginia, the power to adopt land use plans and zoning is
delegated to counties and incorporated municipalities. Most densely
188. Id. at 480-81 (“[T]he municipalities contend that Act 13 . . . forces
municipalities to enact zoning ordinances . . . allowing, among other
things, mining and gas operations in all zoning districts which are
incompatible with the municipalities’ comprehensive plans that
denominates different zoning districts, making zoning irrational.”).
189. Id. at 482 {quoting In re Appeal of Realen Valley Forge Greenes
Assocs., 838 A.2d 718, 728 (Pa. 2003)).
190. Id. at 484.
191. Pennslyania appealed the Gommonwealth Gourt’s ruling striking down
portions Act 13. The Pennsylvania Supreme Court heard oral argument
on October 17, 2012. Robinson Twp. v. Gommonwealth, No. 63 MAP
2012 (Pa. 2013).
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settled incorporated municipalities, such as the City of Morgantown,
have adopted land use plans and zoning, and some have used it to
prevent or limit hydrofracking. Morgantown, in fact, exercised its
extraterritorial jurisdiction under state law and banned hydrofracking
within a mile of its borders.’^^ In 2011, a lower state court in West
Virginia invalidated this local antifracking law, holding that the state
had completely preempted the field with respect to oil and gas law.’^’
The court noted that “[tjhese regulations do not provide any
exception or latitude to permit the City of Morgantown to impose a
complete ban on fracking or to regulate oil and gas development and
production.'”^”
Does this lower court opinion leave open the prospect of local
regulation that allows but limits gas drilling, particularly in light of
the fact that state gas regulation standards do not consider many of
the local impacts traditionally governed by zoning? In 2012, the
Morgantown City Council tested this notion by amending its zoning
law to prohibit gas drilhng within certain distances of schools, houses
of worship, hospitals, and residential neighborhoods.’^^ This latest
amendment raises interesting questions about the exercise of state and
local power in West Virginia.
Regarding environmental protection generally. West Virginia
statutes indicate that “[t]he state has the primary responsibility for
protecting the environment; other governmental entities, public and
private organizations and our citizens have the primary responsibility
of supporting the state in its role as protector of the environment.'””’
Statutes provide that the job of the State Department of
Environmental Protection is to “consolidate environmental regulatory
programs in a single state agency,” while also providing a
“comprehensive program for the conservation, protection, exploration,
development, enjoyment and use of the natural resources of the State
of West Virginia.'””” Case law establishes that “where an ordinance is
192. Ne. Nat. Energy, LLC v. City of Morgantown, No. ll-C-411, 2011 WL
3584376, at *1 (W. Va. Cir. Ct. Aug. 12, 2011).
193. Ne. Nat. Energy, 2011 WL 3584376, at *9 (“[T]he State’s interest in oil
and gas development and production throughout the State as set forth
in the W. VA. CODE § 22-6 et seq. (1994), provides for the exclusive
control of this area of law to be within the hands of the WVDEP.”).
194. Id.
195. Morgantown Will Try to Zone Out Most Gas Drilling, SHALEREPORTER
(June 4, 2012, 12:15 AM), http://www.shalereporter.com/government/
article_7dd089a4-adc0-llel-8543-0019bb30f31a.html.
196. W. VA. CODE ANN. § 22-l-l(a)(2) (LexisNexis 2009).
197. Id. § 22-l-l(b)(2)-(3).
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in conflict with a state law the former is invahd.'”^^ The principle is so
fundamental that “citation of authorities is unnecessary.'”^’*
State statutes delegate responsibility for regulating oil and gas to
the Depai-tment of Environmental Protection {DEP).̂ »” The DEP’s
Office of Oil and Gas (OOG) is “responsible for monitoring and
regulating all actions related to the exploration, drilling, storage and
production of oil and natiual gas.”^*” OOG inspectors are authorized to
issue orders demanding that wells cease operations if there is a violation
or potential violation and imminent danger to himians or freshwater
sources.̂ “^ Class II well operators are required to permanently dispose of
wastewater,*’̂ ™.most of which is handled through underground injection
regTilated under the state’s UIC program.^””
This less than comprehensive regulatory scheme generated
criticism of the state’s response to hydrofracking, leading the governor
to supplement legislative standards with executive requirements.
Under Executive Order 4-11, Governor Earl Ray Tomblin instructed
the DEP to issue emergency rules requiring certain gas wells to be
accompanied by an erosion and sediment control plan as well as a site
construction plan, both of which are to be approved by a registered
professional engineer.̂ **̂ The order also required a site-specific well
safety plan and set minimum standards for well construction.^”” It
further required that an applicant for a well permit submit a water
management plan if the well uses more than 210,000 gallons of water
monthly.^”^ Information required to be submitted with this plan
includes the type of water source, the anticipated withdrawal volume,
the anticipated months during which withdrawal would occur, the
planned management for the processing or disposal of wastewater, and
198. Vector Co. v. Bd. of Zoning Appeals, 184 S.E.2d 301, 304 (W. Va.
1971).
199. Id.
200. W. VA. CODE ANN. § 22-6-2(a).
201. W. VA. D B P ‘ T OF ENVTL. PROTECTION, OFFICE OF OIL AND GAS,
http://www.dep.wv.gov/oil-and-gas/Pages/defauIt.aspx (last visited
Apr. 3, 2013).
202. W. VA. C O D E § 22-6-3(a).
203. Press Release, W. Va. Dep’t of Envtl. Protection, industry Guidance,
Gas Well Drilling/Completion, Large Water Volume Fracture
Treatments, at 1, 4 (Jan. 8, 2010).
204. Pam Kasey, Pa. W. Va. A ddress Salt Problems Differently, Sl\ J.
(Charleston, W. Va.), Jan. 8, 2010, available at http://www.uppernion.org/
news/charleston/SJ-SaIt_l^gulation-8Janl0.html.
205. W. Va. Exec. Order No. 4-11, H 4(a) (July 12, 2011).
206. id. H 4(d).
207. Id. H 4(c).
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the anticipated additives in the hydrofracking fluid.^”^ Operators are
also required to record the quantity and method of management of
flowback water.̂ “^ Finally, operators must provide public notice for
any well to be located within the boundaries of a municipality. The
notice is to include the well’s location, the expected date that the
drilling will begin, and the operator’s contact information.^'”
The West Virginia legislature’s response to criticism of the
regulatory system was to adopt the Marcellus Shale Hydrofracking
Rules Bill in 2012, which significantly increased permit fees and
required gas wells to be set back at least 250 feet from a water well,
300 feet from a natural trout stream, 625 feet from occupied houses,
and 1,000 feet from a public water supply intake.^” Well operators
under this Bill must also maintain at least 100 feet between wells and
other water sources. ‘̂̂ The DEP was given the power to grant
variances from these staridards under certain circumstances.^’^
In reviewing Morgantown’s new.regulations on hydrofracking, or
those of any other zçning municipality in West Virginia, the judiciary
will be challenged to determine whether these enactments of the state
legislature, as supplemented by the Governor’s executive order,
occupy the field and preempt local regulation. Prior case law
recognized the different aspects of business that are subject to both
state and local regulation.^”’ There is a strong argument that the
interests protected by West Virginia planning and zoning statutes
extend far beyond the interests protected by existing hydrofracking
regulation. This is evident in the language of the legislation adopted
by the state legislature delegating planning and zoning authority to
incorporated municipalities and counties.̂ “^
208. Id.
209. Id. II 4(f)(iii)(l)(a).
210. Id. 1 4(g).
211. W. VA. CODE ANN. § 22-6A-12(a)-(b) (LexisNexis Supp. 2012).
212. Id.
213. Id. (“(T]he well operator may be granted a variance by the secretary
from these distance restrictions upon submission of a plan which
identifies the sufficient measures, facilities or practices to be employed
during well site construction, drilling and operations.”).
214. See Longwell v. Hodge, 297 S.E.2d 820, 825 (W. Va. 1982) (upholding
regulation of the location of a beer-selling restaurant under zoning,
despite the fact that the establishment was regulated by state law; the
purposes of the two regulatory regimes were different and no conflict
was found).
215. W. VA. CODE ANN. § 8A-3-7 (LexisNexis 2012) (setting forth
comprehensive requirements for the submission of a comprehensive plan
by the planning commission).
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These state statutes provide that the purpose of a comprehensive
plan is to guide the local legislatiu’e so that it can accomplish the
coordinated and compatible development of land and impi’ovements
within its jurisdiction. ‘̂*^ The comprehensive plan is deñned as
a process through which citizen participation and thorough
analysis are used to develop a set of strategies that establish as
clearly and practically as possible the best and most appropriate
future development of the area under the jurisdiction of the
planning commission. A comprehensive plan aids the planning
com misai on in designing and recommending to the governing
body ordinances that result in preserving and enhancing the
unique quality of life and culture in that community and in
adapting to future changes of use of an economic, physical or
social
Under the statute, additional purposes of the comprehensive plan
are to
(1) Set goals and objectives for land development . . .
(3) Coordinate all governing bodies, units of government and
other planning commissions to ensure that all comprehensive
plans and fxiture development are compatible;
(4) Create conditions favorable to health, safety, mobility,
transportation, prosperity, civic activities, recreational,
educational, cultural opportunities and historic resources; . . .
(7) Promote a sense of community, character, and identity; [and]
(8) Promote the efficient utilization of natural resources, rural
land, a,gricultural land and scenic areas . . . .'””̂
Zoning ordinances under these West Virginia statutes are to be
adopted to promote the public welfare, health, safety, comfort, and
morals of the community, preserve historic landmarks and buildings,
preserve agricultural land, and promote the orderly development of
the land.^”‘ These provisions allow local zoning to regulate the use of
the land, prohibit specific land uses, protect and enhance the physical
qualities of the community, divide the community into different zones
216. Id. § 8A-3-l(a) (“The general purpose of a comprehensive plan is to
guide a governing body to accomplish a coordinated and compatible
development of land and improvements within its territorial jurisdiction,
in accordance with present and future needs and resources.”).
217. Id. § 8A-3-l(b).
218. Id. § 8A-3-l(d).
219. Id. § 8A-3-2(b).
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for regulating the use of the land, create overlay districts and special
design districts within which specific additional development
standards will apply, regulate, the height, axea, bulk, use, and
architectural features of buildings, preserve green spaces, and require
new green spaces, landscaping, screening, and the preservation of
adequate natural light.
It is a fair question to ask whether the same legislature that
adopted this detailed and broad legislative regime to provide for the
appropriate use of the land at the local level intended to fully
preempt its exercise by the adoption of the oil and gas laws, which
focus on a much more limited set of impacts. Since the only case law
in West Virginia to date involves a complete ban on hydrofracking
and is a lower court opinion, it is possible that a full review of both
legislative schemes by a higher court will reveal a path for
harmonizing them both, as the courts did in New York and
Pennsylvania. This possibility is furthered by the legislature’s reversal
of the former rule of strict construction of local land use laws.̂ “̂
B. Ohio
In Ohio, the issue of state preemption of local land use control of
gas drilling was squarely addressed in Newbury Township Board of
Trustees v. Lomak Petroleum, Inc.””’ Under the authority granted to
it to plan and regulate development, the township amended its zoning
ordinance to prohibit drilling in all residential areas.̂ ^^ In doing so, it
relied on a long tradition of local zoning in the state.̂ ^^ In 1925, the
Ohio Supreme Court upheld the constitutionality of municipal zoning,
finding that local zoning helps to maintain the welfare of the
community.^ ‘̂’ The power to plan, zone, and regulate land use is
220. See id. % 8-1-7 (instructing courts to review local land use authority
fairly broadly). The section declares that the “enumeration of powers
and authority granted in this chapter shall not operate to exclude the
exercise of other powers and authority fairly incidental thereto or
reasonably implied and within the purposes of this chapter . . . [and t]he
provisions of this chapter shall be given full effect without regard to the
common-law rule of strict construction.” Id.
221. Newbury Twp. Bd. of Trustees v. Lomak Petrol., Inc., 583 N.E.2d 302
(Ohio 1992).
222. Id. at 306 (holding that a township may prohibit drilling in residential
areas for legitimate health and safety concerns).
223. Id. (noting that the township zoning resolution in this ca^e did not
adopt health and safety standards, which conflicted with state law that
prevented prohibition of drilling in appropriate areas, unless for health
or safety reasons).
224. Pritz V. Messer, 149 N.E. 30, 35 (Ohio 1925). This case preceded Village
of Euclid V. Ambler Realty Go., 272 U.S. 365 (1926), which affirmed the
constitutionality of local zoning, and particularly its separation of land
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vested in the state’s Ceneral Assembly pursuant to the Ohio
Constitution.^^” Throngh its home-rule provisions and enabling
statutes, the Ohio legislature and courts have given significant police
power and planning authority to regulate land use to the local
legislatures of counties, townships, and municipalities.̂ ^*^
The Obio Oil and Gas Act, chapter 1509, however, expressly
prohibits certain local land use restrictions, while allowing localities to
adopt zoning restrictions that are designed to protect the public from
the health and safety risks of drilling.^” The Newbury court noted that
the Ceneral Assembly had no desire to totally strip local
governments . . . of the power to regulate activities within their
borders. [Ohio Revised Code] Chapter 1509 attempts to strike a
balance between those aspects of oil and gas well exploration
and drilling which are reserved for state regulation and those
areas which local governments . . . may permissibly
Despite this recognition of local zoning power over hydrofracking,
the court in Newbury invalidated the total restriction of drilling in all
residential districts.’-̂ “‘̂ ‘* It noted that the residential zoning districts in
the township included significant amounts of agiicultural lands—areas
where gas companies traditionally drill.̂ ”” The court also noted that
there were no agricultural zoning districts in the township, recognized
tbat a significant amount of land in the residential districts was not
developed residentially, and questioned whether the blanket
restriction truly was motivated by public health and safety
uses, drawing on nuisance law as an analogy, and basing its holding in
part on protecting public health and safety.
225. OHIO CONST, art. II, § 1.
226. See Vill. of Hudson v. Albrecht, Inc., 458 N.E.2d 852, 855 (Ohio 1984)
(noting “that the right of the individual to use and enjoy his private
property is not unbridled but is subject to the legitimate exercise of the
loca! police power”); see aho Euclid, 272 U.S. 365; Morris v. Roseman,
118 N.E.2d 429, 431 (Ohio Ct. App. 1954) (“The enacting of a zoning
ordinance is clearly an exercise of the police power of a municipality in
protecting the public morals, safety, health and general welfare of the
people.”).
227. OHIO REV. CODE ANN. § 1509.39 (West 1996).
228. Newbury Twp. Bd. of Trustees v. Lomak Petroleum, Inc., 583 N.E.2d 302,
304 (Ohio 1992). “(Ohio Revised Code) 1509.39 preempts fche power of a
township to prohibit oil or gas well drilling in areas which are traditionally
appropriate for such activity, unless health and safety standards are being
adopted by the township zoning resolution.” M at 306.
229. Id. at 306.
230. Id. at 305.
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concerns.^ ‘̂ The effect of banning hydrofracking in residential zones in
a town with only three zoning districts—residential, commercial, and
industrial—was to confine the practice to a small portion of the
community.̂ ^^ On the strength of this logic, the court invalidated the
restriction.^’^
The court remanded for further consideration of the issue of
whether provisions of the local law that prohibited drilling within 300
feet of an inhabited structure protected public health and safety.
Objecting to the remand, a concurring justice noted that “the
majority imposes an even higher level of scrutiny to determine
whether this regulation passes statutory muster . . . . [W]e need only
determine whether it rationally promotes township health and safety,
not whether it is narrowly tailored to address such concerns.”^ ‘̂’
This decision, de facto, prevents Newbury Township from
preserving its agricultural lands for future residential use, since homes
are not likely to be developed in and around a number of gas drilling
facilities. Beyond that, the Newbury decision imposes a duty upon
local legislatures, in adopting hydrofracking restrictions, to prove that
they accomplish public health and safety objectives. This reverses the
traditional deferential posture of the courts in reviewing decisions of
legislatures, particularly with regard to zoning matters. From its
inception, zoning determinations by local legislatures have been
subjected to a rational basis test, which this decision reversed.̂ ”̂
The practical impact of Newbury is that local governments in
Ohio must adduce some evidence or argument as to how
hydrofracking regulations protect the public health and safety before
they adopt them. ‘̂̂ How, for example, could the township have
231. Id.
232. Id.
233. Id. at 306 (“Because Section 801.0 A of the Newbury Township Zoning
Resolution is not an attempt to further health and safety goals, we find
that Section 801.0 A conflicts with, and therefore is preempted by, state
law.”).
234. Id. at 309 (Wright, J., concurring in part and dissenting in part).
235. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926) (“If
these reasons, thus summarized, do not demonstrate the wisdom or
sound policy in all respects of those [zoning] restrictions . . . at least, the
reasons are sufficiently cogent to preclude us from saying, as it must be
said before the ordinance can be declared unconstitutional, that such
provisions are clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals, or general welfare.”).
236. This assertion, if correct, questions the vahdity of the October 1, 2012,
adoption by the City Council of Yellow Springs of a Bill of Rights
ordinance banning shale gas drilling and associated activities. Bob
Downing, Ohio’s Yellow Springs Adopts Community Bill of Rights,
AKRON BEACON J. ONLINE (Oct. 3, 2012), http://www.ohio.com/blogs/
drilling/ohio-utica-shale-1.291290/ohio-s-yellow-springs-adopts-community-
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proved that prohibiting hydrofracking in its extensive residential
districts was motivated by such concerns? On the one hand, this may
mean that local governments must identify, understand, and reiy on
the public health and environmental risks that attend hydrofracking
and import enough of that science to support their decisions.
Alternatively, localities may be able to demonstrate that their
antifracking laws are motivated by public health and safety concerns
by referring to existing case law in the state and the constitutional
and statutory provisions that these cases reference.
Taking this latter approach, could Newbury demonstrate that
preserving a large part of the township for current agxicultural and
future residential use protects local health and safety? On point is
Ketchel v. Bainsbridge Township,’^^’^ in which the Ohio Supreme Court
found that a three-acre minimum lot size requirement in a residential
zone was a valid requirement in order to protect underground aquifers
from being depleted by the demands brought about through
subdivision of denser, smaller lots.^^ Such a purpose is clearly tied to
protecting local public health and safety. The court ruled that “a local
zoning authority may consider the conservation of underground water
resources when enacting zoning regulations.”‘” ‘̂'”
The connection under Ohio law between protecting the public
health, safety, and welfare and preserving natural resources is
extraordinarily clear. The Ohio Constitution provides that
conservatiori, preservation, and revitalization are legitimate “public
purposes” and vests local governments with the authority to engage in
the “conservation and preservation of natural and open areas” and to
“control, prevent or minimize, clean up or remediate . . . water
contamination or pollution.”^'”‘ Among the strategies that
biII-of-rights-1.338971. Yellow Springs joins twelve other localities in
Pennsylvania and New York in passing similar local legislation. Megan
Bachman, Council Considers Drilling Ordinance—Ban Would Be First
in Ohio, YELLOW SPRINGS NEWS (Aug. 9, 2012), http://ysnews.com/
news/2012/08/council-considers-drilling-ordinance%E2%80%94-ban-would^
be-first-in-ohio. How can such municipalities support a total ban based
on public health and safety concerns? There may be responsible answers
to this question, but supporting such ordinances is certainly a heavier
lift than supporting, for example, set-back restrictions such as those
adopted in Newbury.
237. Ketchel v. Bainsbridge Twp., 557 N.E.2d 779 (Ohio 1990).
238: Jd. at 785.
239. Id. at 783.
240. OHIO CONST, art. VIII, § 2o (authorizing local government entities to
provide for the “conservation and preservation of natural and open areas
and farmlands, including by making urban areas more desirable or
suitable .for development and revitalisation; to control, prevent,
minimize, clean up, or remediate certain contamination of or pollution
from lands in the state and water contamination or pollution.”); see also
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municipalities in Ohio can consider in the wake of the Newbury
decision is to create conservation or environmental zones in lieu of
residential holding zones. This is because zoning laws may be enacted
for the protection of the environment or conservation of natural
resources.^'” This has been held to be a legitimate exercise of the
police powers granted to municipalities, counties, and townships to
protect the local public health, safety, and welfare.̂ “”̂ In Cash v.
Cincinnati Board of Zoning Appeals,’^’^^ the Ohio Court of Appeals
found that the purposes of a Cincinnati Environmental Quality-
Hillside District advanced the public safety, health, and welfare.̂ ”̂ In
Reed v. Rootstown Twp. Board of Zoning Appeals,'”‘^ the Ohio
Supreme Court sustained an application of an Open Space
Conservation District, which established a five-acre minimum lot
requirement for a swampy area in order to protect the ecological
balances and conserve natural resources.^”” The Ohio Supreme Court
had held that such conservation districts were a reasonable and
legitimate use of police power by the
OHIO CONST, art. II, § 36 (“Laws may be passed to encourage foresti:y
and agriculture . . . and to authorize the acquiring of other lands for
that purpose . . . [and] to provide for the conservation of the natural
resources of the state, including streams, lakes, submerged and swamp
lands and the development and regulation of water power and the
formation of drainage and conservation districts; and to provide for the
regulation of methods of mining, weighing, measuring and marketing
coal, oil, gas and all other minerals.”). This constitutional provision
gives local governments great leeway in protecting and promoting the
conservation of natural resources through the use of land use regulations
and devices.
241. See Ketchel, 557 N.E.2d at 783 (noting that resources such as
groundwater must be conserved and protected).
242. See Reed v. Rootstown Twp. Bd. of Zoning Appeals, 458 N.E.2d 840,
842 (Ohio 1984) (holding that the requirements and purposes of a
township zoning resolution were “reasonable and legitimate exercise[s] of
police power”).
243. Cash v. Cincinnati Bd. of Zoning Appeals, 690 N.E.2d 593 (Ohio Ct.
App. 1996).
244. Id. at 597. The purposes of the Cincinnati Environmental Quality-
Hillside District are “to assist the development of land and structures to
be compatible with the environment and to protect the quality of the
urban environment in those locations where the characteristics of the
environment are of significant public value and are vulnerable to
damage by development permitted under conventional zoning and
building regulations.” Id. at 595.
245. Reed, 458 N.E.2d 840.
246. Id. at 842.
247. Id. at 840.
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These innovative zoning techniques exhibit the strength of the
power delegated to local governments and suggest a path toward
demonstrating that public health and safety concerns motivate zoning
provisions that limit hydrofracking. Such a strategy is bolstered by
the general understanding of local power under Ohio law. The Home
Rule Amendment to the Ohio Constitution, for example, states that
“[m]nnicipalities shall have authority to exercise all powers of local
self-government and to adopt and enforce within their limits such
local police, sanitary and other similar regulations, as are not in
conflict with general
V. C O O P E R A T I V E GOVERNANCE: S T A T E – L O C A L COLLABORATION
There is tension in the four Mai’cellus Shale states regarding
regulatory control of gas drilling. Debates take on an “either-or”
character, with advocates arguing to elbow out the level of
government they think least likely to meet their interests.”””‘ Now that
the power of New York towns to ban hydrofracking has been upheld
on appeal, those who oppose hydrofracking may fan the flames of
local resistance, encouraging others to follow suit. If they are
successful in this, the industry and those who will benefit from its
relatively cheap energy will lobby for Act 13-type solutions in the
form of new state legislation clearly preempting local regulation.
Rather than ask which level of government should win the battle
for control of gas drilling, it is far preferable to ask how both state
and local officials and stakeholders can be involved.̂ “‘”” As this Article
demonstrates, zoning is an important tool in the municipal
governance toolkit and should not be sacrificed for the sake of
248. OHIO CONST, art. XVIII, § 3.
249. This discussion presupposes that the federal government will remain
gridlocked legislatively and that Congress will permit only modest
interventions by the EPA, beyond those mentioned in Part I. Both state
and local governments would benefit from more aggressive federal
action, including funding much-needed scientific research regarding the
public health and environmental impacts of hydrofracking and fully
integrating the gas drilling industry into khe coverage of federal clean air
and water protections.
250. See INST. OF MED. OF THE NAT’L ACADS., ENVIRONMENTAL
DECISIONS IN THE FACE OF UNCERTAINTY 139 (2013) (“Agency
decision-making processes that involve stakeholders, including dialogues
with stakeholders about uncertainties, can demonstrate intentional
transparency and create, maintain, and enhance a relationship of trust
between the agency and stakeholders . . . . Early and continuous
involvement of stakeholders can also prevent delays that can occur when
stakeholders are not engaged in decision making until later in the
process, at which time they might take legal actions.”) “Stakeholders” is
defined in this document to include communities. Id. at 139 n.8.
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Hydrofracking: State Preemption, Local Power, and Cooperative Covemance
streamlining the gas drilling permitting process. Zoning out
hydrofracking, on the other hand, may frustrate important state
interests, particularly if it becomes widespread. Gas reserves
transcend local boundaries and states have a legitimate interest in
promoting an adequate supply of energy sources of their choice. These
tensions cannot be resolved in winner-take-all litigation or advocacy
in legislative offices and chambers. They require a concerted effort to
negotiate a process and create a framework for decision making that
provides a role for both local and state agencies and their
stakeholders.
The result of such a process might be an agreement by the state
to promulgate model zoning ordinances, such as a gas exploration
overlay zone,̂ ‘̂ and provide technical assistance to localities in how to
adapt such ordinances to their local circumstances. It may be that
communities adopt total bans in part because they do not have access
to best practices such as these or the understanding of both the law
and science necessary to employ them. State agencies that are
investing time and money in creating their own regulatory regimes
can cost effectively provide such technical assistance to localities as
part of a cooperative state-local approach to controlling local impacts
and promoting regional and statewide interests.
In New York, the DEC has proposed giving communities with an
adopted comprehensive plan component on gas drilling a method of
becoming involved in the permitting process.̂ ^^ The proposal is to
require an applicant for a gas drilling permit in a town with a
hydrofracking component of its comprehensive plan to negotiate with
local officials to conform the drilling to the plan, prior to the DEC’s
final decision on the permit.̂ ^^ But how are localities with limited
professional staff going to draft an accurate and reasonable
comprehensive plan component on hydrofracking, with its multiple
and complex impacts? Such a plan should discuss and assess all
environmental and public health risks, as well as the adverse impacts
on the particular community’s character and environment. State
agencies that are charged with regulating the oil and gas industries
can be tasked with providing information to localities to help them
draft well-informed and appropriate planning documents. This
251. See Robert H. Frelich & Neil M. Popowitz, Oil and Gas Fracking: State
and Federal Regulation Does Not Preempt Needed Local Government
Regulation, 44 URB. LAW. 533, 556-57 (2012) (discussing the oil and gas
element of the Santa Fe County Sustainable Land Development Plan,
which “can be used as a local government model for similar planning
and regulation in cities and counties where oil and gas drilling and
hydrological fracturing permits are requested, in coordination with and
supplemental to permits issued under state oil and gas legislation.”).
252. REVISED DRAFT SGEIS, supra note 3, at 26-27.
253. Id.
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Hydrofracking: State Preemption, Local Power, and Cooperative Governance
information could also guide communities in identifying measures that
can mitigate the adverse impacts of gas drilling.
One model for state-local cooperative governance is New York’s
law on siting major electric generating facilities, which preempts local
control of utihty siting but accommodates the local interest in the
permitting system it created.̂ “̂̂ This law reauthorized and revised
article X of the Public Service Law, establishing an electric generation
siting board to review and approve the siting of electric utility
generators of twenty-five megawatts or greater.̂ ^^ This board is
empowered to override local land use laws that it believes are
unreasonably burdensome,^^” but it includes two members who are
residents of the affected community.̂ ^^ Prior to the adoption of this
law and following the expiration of a previous version of article X,
locahties governed this land use and often opposed or significantly
delayed the approval of generation plants vitally needed by the state’s
power gi’id. In establishing a state-controlled siting system, the
legislature largely preempted local control but allowed for the input of
the affected locality and local stakeholders.^^ In addition to requiring
local residents to sit on the siting board, the revised article X requires
applicants to set up a fund that will enable affected local
governments, environmental groups, and the community at large to
hire experts, lawyers, and other consultants to participate in the
process of creating a scope of review for the proposed utility.̂ ^^
Applicants ai’e encouraged to enter into agreements with these parties
regarding the scope of review and a hearing examiner is appointed to
resolve any disputes that arise over the scoping.̂ “” While it does not
impose a collaborative decision-making process on affected agencies,
governments, and private actors, this legislative approach sets the
table and provides significant resources so that one can occur.
There are many more such techniques that could be agreed upon
if states pursued the intentional policy of including and working with
local governments in the regulation of hydrofi-acking, followed by
serious negotiations to create a fi-arnework and practices for working
.'”̂*” Such a policy would avoid the uncertainty and vagaries of
254. N.Y. P U B . SERV. LAW §§ 160-173 (McKinney 2011 & Supp. 2013).
255. Id. § 162.
256. Id. § 168(3)(e).
257. Id. § 160(4).
258. Id. § 166(j), (k).
259. Id. § 163(4)(a).
260. Id. § 163(5).
261. These rather modest suggestions build on a sophisticated strategy
referred to as reflexive law regimes. Commentators in the field of
reflexive law, which this Article refers to as cooperative government.
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Hydrofracking: State Preemption, Local Power, and Cooperative Governance
preemption debates and litigation, respect the critical role of local
governments in controlling land uses within their jurisdictions, offer
them the technical assistance they need to determine where
hydrofracking can occur and how to guard against its adverse
impacts, and avoid simplistic solutions such as complete proscriptions
that may be inimical to larger state interests.
suggest that positive or formal lawmaking, where higher orders of
government create and impose standards on lower-order governments
and constituents, is not up to the task of managing highly complex,
multifaceted problems such as hydrofracking, with its many local, state,
and federal benefits and potential adverse impacts. They offer
procedural solutions: reflexive laws that prescribe or suggest decision-
making processes that involve government agencies and private sector
and civic stakeholders in developing and achieving performance-based
solutions. Such laws encourage reciprocal reflection within and among
governmental agencies, regulated entities, and involved stakeholders
about their performance regarding complex issues like those raised by
the challenge of governing hydrofracking. For more on reflexive laws, see
generally Tim Iglesias, Housing Impact Assessments: Opening New
Doors for State Housing Regulations While Localism Persists, 82 O R . L .
REV. 433, 475 n.l48 (2003); Sanford E. Gaines, Reflexive Law as a Legal
Paradigm for Sustainable Development, 10 BUFF. ENVTL. L.J. 1 (2003);
Eric W. Orts, Reflexive Environmental Law, 89 Nw. U. L. REV. 1227
(1995); John G. Dernbach, Navigating the U.S. Transition to
Sustainability: Matching National Governance Ghallenges with
Appropriate Legal Tools, 44 TULSA L . REV. 93 (2008); Glayton P.
Gillette, Allocating Government for Disaster Mitigation, in LOSING
GROUND: A NATION ON EDGE 251 (John R. Nolon & Daniel B.
Rodriguez eds., 2007).
1039
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C A S E W E S T E R N R E S E R V E LAW R E V I E W • VOLUME 63 • ISSUE 4 • 2013
H Y D R O F R A C K I N G :
STATE PREEMPTION, LOCAL POWER,
AND COOPERATIVE GOVERNANCE
John R. Nolon^ & Steven E. Gavin^
ABSTRACT
Advocates for the gas drilling technology known as hydrauhc 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 pubhc interest. One of
the many issues raised by hydrofracking is which level of goverrmient
should regulate which aspects of the practice. This debate is
comphcated 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 goverrmient. This
Article begins by describing the hmited 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 MarceUus 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 drilhng operations. This
investigation suggests that the broad scope and durabihty 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 extraordi-
narily 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
goverrmient can be integrated in a system of cooperative governance.
t John R. Nolon is Professor of Law at Pace Law School and Counsel to
the Land Use Law Center, and has been an adjunct professor at the
Yale School of Forestry and Environmental Studies since 2001.
\ Steven E. Gavin is a student at Pace Law School and editor in chief of
the Pace Environmental Law Review.
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Hydrofracking: State Preemption, Local Power, and Cooperative Governance
CONTENTS
INTRODUCTION: HVDROFRACKING RAISES JURISDICTIONAL ISSUES
996
L LIMITED SCOPE OF GURRENT FEDERAL REGULATIONS
1000
A. Safe Drinking Water Act
1002
B. Clean Water Act
1005
C. Clean Air Act
1006
D. Comprehensive Environmental Response, Compensation,
and Liability Act
1008
E. Resoxirce Conservation and Recovery Ad
1009
F. Endangered Species Act lOlO
C. Toxic Substances Control Act
1012
IL NEW YORK: LOCALITIES WIN ROUND ONE, ESCAPINC PREEMPTION…
1013
i n . PENNSYLVANIA: PREEMPTION THWARTED
1021
ÍV. W E S T VIRCINIA AND OHIO; HYDROPRACKINC LAW IN LIMBO
1026
A. West Virginia Cas Regulation and Local Land Use Control 1026
B. Ohio
1031
V. GooPERATivE GOVERNANCE: STATE-LOCAL GOLLABORATION
1036
INTRODUCTION: HYDROFRACKING RAISES JURISDICTIONAL ISSUES
Hydraulic fracturing, or hydrofracking, is a gas well stimulation and
extraction technique designed for ai’eas underlain by large shale
formations foimd 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 fai- from the well
head.’ In horizontal hydrofracking, millions of gallons of water ai’e
pmnped at high pre&sure into the well bore—water that contains
thousands of gallons of proprietary chemical shnrries and a propping
agent, such as sand.^ The pressure creates fractures in the hychocaibon-
1. Marianne Levelle, Forcing Cas Out of Rock with Water, NAT’L
GEOGRAPHIC DAILY NEWS (Oct. 17, 2010), http://news.nationalgeo
graphic.com/news/2010/10/i0
1022
-energy-marcellus-shale-gas-science-tec
hnology-water.
2. Between one million and five million gallons, or more, of water are
needed for a typical gas well in the Marcellus shale. MICHÈLE RODOERS
ET AL., MARCELLUS SHALE: WHAT LOCAL GOVERNMENT OFFICIALS
NEED TO KNOW 5 (2009), available at http://pubs.cas.psu.edu/
freepubs/pdfs/ua454 . About 99.5% of this finid is composed of water
and proppant (usually sifted sand) and about 0.5% consists of chemical
additives. See GROUNDWATER P R O T . GOUNCIL, MODERN SHALE GAS
DEVELOPMENT IN THE UNITED STATES: A PRIMER 61-62 (2009),
available at http://www.gwpc.org/sites/default/nies/Shale%20Gas%20
Primer%202009 (noting that chemicals used include biocides, gels.
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Hydrofracking: State Preemption, Local Power, and Cooperative Governance
bearing shale and the propping agent keeps the fissures open.̂ This
releases the natural gas that the shale contains and allows it to be
pumped to the surface.” 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 facihties.^ This raises
complications in some states, particularly those in the Marcellus region,
where the geology is not favorable to injection wells.® This, in turn,
leads to a search for appropriate injection wells in other states and for
treatment plants that can handle this wastewater, which axe often in
short supply.^ Horizontal hydrofracking operations also emit volatile
organic compounds and methane during the completion of the wells,
raising both public health and climate change concerns.^ 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.^
Advocates for the gas drilling industry argue that hydrofracking
will bring significant economic benefits to the private and pubhc
friction reducers, and other agents that reduce corrosion, thus easing the
process of hydrofracking the shale). For a graphic representation, see A
Fluid Situation: Typical Solution Used in Hydraulic Fracturing, ENERGY
IN DEPTH, http://www.energyindepth.org/frac-fluid (last visited
Apr. 9, 2013).
3. N.Y. STATE D E P ‘ T OF ENVTL. CONSERVATION, REVISED DRAFT,
SUPPLEMENTAL GENERIC ENVIRONMENTAL IMPAGT STATEMENT ON
THE OIL, GAS AND SOLUTION MINING REGULATORY PROGRAM 5-5
(2011) [hereinafter REVISED DRAFT S G E I S ] , available at http://
www.dec.ny.gov/data/dmn/rdsgeisfullO911 ; John A. Harper, The
Marcellus Shale—An Old “New” Gas Reservoir in Pennsylvania, 38 P A .
GEOLOGY 1, 10 (2008), available at http://www.dcnr.state.pa.us/cs/
groups/public/documents/document/dcnr 006811 .
4. See REVISED DRAFT SGEIS, supra note 3, at 5-5 (describing how
hydrocarbons are retrieved after fluids are injected and recovered).
5. See id. at 5-131 (noting the disposal options for flowback water).
6. Joanna Zelman, New York Fracking Debate Focuses on Wastewater,
HUFFPOST GREEN (Feb. 20, 2012 8:27 AM), http://www.huffmgton
post.com/2012/02/20/new-york-fracking_n_1288696.html (“Other geologists
have said New York doesn’t have the right geology for such wells.”).
7. See REVISED DRAFT SGEIS, supra note 3, at 5-132 to 5-133.
8. Press Release, EPA, EPA Proposes Air Pollution Standards for Oil and
Gas Production (July 28, 2011), http://yosemite.epa.gov/opa/admpress.
nsf/le5abll24055f3b28525781f0042ed40/8688682fl3bblac65852578db0069
0ec5 ! OpenDocument.
9. See REVISED DRAFT SGEIS, supra note 3, at 6-303 (estimating that
each permitted well generates about 6,800 truck trips).
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Hydrofracking: State Preemption, Local Power, and Cooperative Covemance
sectors.'” 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, ta^
revenues, water needed, wastewater created, and the extent of
gronndwater 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 hydrofracking point also to a variety of
environmental risks that they fear are associated with the technology:
air pollution, groimdwater depletion and contamination, surface-water
pollution, soil erosion and sedimentation, visual blight, noise pollution,
road congestion and destruction, and the deterioration of community
chai”acter.” They worry as well about a vai’iety 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 matter
from heavy trucks travelling on dirt roads, personal injury from seeping
hydrochloric acid and solvents, eai’thquakes, and diesel ñiel and toxic
chemicals in ground water.'”^
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 hydro-
fracking are national, regional, statewide, and local in nature and that
the risks associated with hydrofi-acking 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 hydroñ’acking regulation, others argue that states should
10. See Jared B. Fish, Note, The Rise of Hydraulic Fracturing: A
Behavioral Analysis of Landowner Decision-Making, 19 BUFF. ENVTL.
L.J. 219, 265 (2012) (noting that entry of the natural gas industry can
bring jobs to communities and produce quick Financial gains for
landowners).
11. See REVISED DRAFT S G E I S , supra note 3, at 2-9 to 2-19.
12. See Charlotte Tucker, Health Goncems of ‘Fracking’ Drawing Increased
Attention, NATION’S HEALTH, Mar. 2012, at 1, 14, available at
http://thenationsheaIth.aphapublications.Org/content/42/2/l.2.rull (noting
the EPA’s public health concerns related to hydrofracking); see generally
REVISED DRAFT SGEIS, supra note 3 (providing a detailed accounting
of the airborne chemicals detected at well sites, water quality measures,
seismic activity, traffic effects, and health risks).
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Hydrofracking: State Preemption, Local Power, and Cooperative Covemance
preempt local regulation, and some see benefits in the involvement of
all three levels of government in regulating the technology..’̂
If the advocates of either federal or state preemption prevail, the
historical role of local governments in controlhng local land uses and
their impacts will be diminished, if not extinguished.” LocaJ govern-
ments 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 imphcation, state legislatures
13. See Ghristopher S. Kulander, Shale Oil and Gas State Regulatory Issues
and Trends, 63 GASE W . RES. L . REV. 1101, 1140 (2013) (“[W]hat.is
being derided as a weakness is actually a strength: each state can
rapidly respond to its unique blend of economic, political, hydrologicàl,
and geological realities to achieve realistic and functional regulatory
oversight. A further weakness alleged by those favoring federal primacy,
that states are ‘rushing’ to create law regulating fracing, is also a
strength: the necessary regulations are made in a timely manner, in
response to industry activity, and by those more familiar with the
challenges faced by an individual state.”).
14. The law of preemption is fraught with ambiguity, giving courts leeway
to embrace different policies and achieve different results, given the
context. The Supremacy Glause can be relied upon to support federal
dominance, or the Tenth Amendment to support strong state control;
jurists can dissect language in federal or state statutes that seems to
express an intent to preempt and still decide that the matter under
investigation is not preempted because some aspect of the field regulated
is not dealt with in the statutory scheme. When local governmental
power is the issue, home-rule statutes and fundamental powers of local
government can be relied upon to argue against state law preemption; in
Dillon’s Rule states, this is more difficult, but the Rule is declining in
popularity, and more liberal interpretations of local power are emerging
giving more sway to statutes that delegate power to localities. This
leeway in the law of preemption gives both parties to disputes over legal
power opportunities to make their best case for control of the matter at
hand. This Article posits that those favoring local control over
hydrofracking have a good ca^e because of the complexity,
comprehensiveness, and importance of local land use control in the
critical matter of municipal governance. The authors credit Michael
Allan Wolf, Richard E. Nelson Ghair in Local Government Law,
University of Florida, Levin Gollege of Law, for this insight, which was
offered during his introductory remarks at the 2013 Nelson Symposium.
Professor Wolf urged that scholars and lawyers should embrace this
ambiguity and make their best case for their desired result in each
instance. The argument for a presumption against preemption of local
land use control is the authors’ own.
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Hydrofracking: State Preemption, Local Power, and Cooperative Govemance
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 mmiicipal 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
legislatui”es intended to preempt local zoning.
This Article begins iu 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 use power tends to make
courts reluctant to usurp local prerogatives in the absence of clear and
express language of preemption in gas regulation statutes. The Article
concludes in Part V 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.
I. L I M I T E D S C O P E O F C U R R E N T F E D E R A L R E G U L A T I O N S
Several federal statutes apply, either directly or theoretically, to
hydraulic fi’acturing. But the sprawling federal regulatory structure is
rife with ambiguity and is in a state of flux. Mounting political
pressure from environmental gi’oups, citizen-activists, academia, and
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Hydrofracking: State Preemption, Local Power, and Cooperative Covemance
even Holljrwood’̂ is forcing federal authorities to explore new avenues
of regulation within the existing regulatory structure.”‘ Countervailing
pressures, however, from conservative members of Congress, industry
lobbyists, and environmentalists who advocate for state and local
authority, are trying to strip the EPA of its authority or, at a
minimum, contain it.
Born out of the statutes discussed in the subsections below, the
current federal regulatory system is both fragmented and incomplete.
The Safe Drinking Water Act (SDWA), which applies to the injection
or reinjection of hydrofracking fluid into groundwater aquifers that
provide drinking water, only imposes standards upon drilling
operations injecting diesel fuel, just one of myriad concerns
surrounding the technology.’^ The Clean Water Act (CWA), which
applies to surface water contamination, is powerless to address the
potential contamination resulting from water migrating to the surface
waters after being injected into the ground.’^ The Clean Air Act
(CAA) is cinrrently being used to institute new rules on the release of
methane and hazardous air pollutants, but the scope of this relatively
successful regulatory scheme is confined to the well pad point source;’^
The Comprehensive Environmental Response, Compensation, and
Liabihty Act (CERCLA) grants the EPA the authority to hold
polluters strictly liable for cleanup costs of hazardous waste sites, but
“petroleum . . . [and] natural gas” are exempted from the definitions
of “hazardous substances.”^” Likewise, oil and gas waste is exempted
from the “cradle-to-grave” waste management scheme of the Resource
Conservation and Recovery Act (RCRA).^’ The Endangered Species
Act (ESA) grants the Secretary of the Interior the power to protect
endangered species from “take,” but this approach is rarely used and
entirely contingent upon the regional concerns regarding particular
15. Mark Fischetti, Matt Damon’s Fracking Movie Depicts Gas Gompanies
as Liars, Sci. AM. (Jan. 6, 2013), http://blogs.scientificamerican.com/
observations/2013/01/06/matt-damons-fracking-movie-depicts-gas-compa
nies-as-liars.
16. In the absence of legislative action. President Obama appears poised to
push federal hydrofracking regulations during his second term. See
Wayne J. D’Angelo, Hydraulic Fracturing Regulation in President
Obama’s Second Term, FRACKING INSIDER (NOV. 13, 2012), http://
www.frackinginsider.com/hydrauUc-freicturing-regulation-in-president-obam
as-second-term (noting that the Obama administration is surveying the
regulatory authority it has within existing statutes and assessing how to
issue rules under those statutes).
17. See discussion infra Part LA.
18. See discussion infra Part I.B.
19. 5ee discussion infra Part LC.
20. See discussion infra Part I.D.
21. See discussion infra Part I.E.
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Hydrofracking: State Preemption, Local Power, and Cooperative Governance
The Obaina administration partially granted a petition to
require manufacturers to disclose the chemical makeup of
hydrofracking fluids under the Toxic Substances Control Act (TSCA),
but even if fully granted, these disclosures do not necessitate any
regulation in and of themselves.^^
A. Safe Drinking Water A ci
Enacted in 1972, the Safe Drinking Water Act is designed to ensure
the integrity and safety of public water for human consumption, focus-
ing paiticularly on toxic substances.̂ “* The SDWA estabhshes two
primary regulatory structures to maintain safe public drinking water,
the first of which requires the EPA to set maximimi contaminant levels
for public water systems.^ The second, which appUes to hydrofracking,
mandates that the EPA establish regulatory minima governing
miderground injection, and prohibits “imdergi-ound injection” of fluids
without a pernút.̂ ^ This pertains directly to hydrofracking operations,
which involve the undergroimd injection of millions of gallons of water
containing proppants and proprietai’y chemicals.
The SDWA establishes an Undergi’ound Injection Control progi-am
(UIC), which establishes “inspection, monitoring, recordkeeping, and
reporting requirements” designed to protect drinking water sources
from contamination due to injection operatioiis.^^ The extent to which a
pai’ticular site is regulated depends on which of five classifications it
receives.^ The UIC sets minima for “inspection, monitoring,
recordkeeping, and reporting requirements.”^^ States must implement
their own UIC programs, meeting or exceeding the requirements set by
the EPA.™ After the EPA approves the state UIC program, the state is
22. See discussion infra Part l.F.
23. See discussion infra Part I.G.
24. 42 U.S.C. §§ 300f-300j-26.
25. See 42 U.S.C. §§ 300g-l(a)-(b) (mandating the promulgation of national
primary drinking water regulations and maximum contaminant level
goals).
26. 42 U.S.C. § 300h(b)(l)(A).
27. 42 U.S.C. § 300h(b)(l)(CHb)(2).
28. See 42 U.S.C § 300h-5 (directing the EPA to promulgate regulations
and determine the applicability of monitoring methods to provide the
earliest possible detection of fluid migration into underground sources of
drinking water); 40 C.F.R. § 146.5(a)-(e) (2012) (describing the five
classes of injection wells in the UIC program).
29. 42 U.S.C. § 300h(b)(l)(C); see also 40 C.KR. § 145 (covering state UIC
program requirements).
30. 42 U.S.C. § 300h-l(b)(l)(A).
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responsible for its enforcement.^’ The EPA, however, retains veto power
over the state permitting program.̂ ^
The fight over the EPA’s authority to regulate hydrofracking
under the SDWA has a relatively long legislative history, beginning
with the Legal. Environmental Assistance Foundation, Inc. v. EPA
(LEAF) decision of 1997.̂ 3 In LEAF, the plaintiff challenged the
EPA’s decision to approve the Alabama state UIC program, which
failed to regulate hydraulic fracturing operations.^ In 1997, the
Eleventh Circuit held that the plain meaning of the SDWA
“require[d] the regulation of all [underground injection] activities. “̂ °
Following this 1997 ruling, the EPA conducted a study of the
hydrofracking process in order to determine whether the risks were
sufficient to warrant regulation under the SDWA.̂ ” In a 2003
negotiated agreement with the EPA, Halliburton Energy Services, BJ
Services, and Schlumberger Technology voluntarily agreed “to
eliminate diesel fuel in hydraulic fracturing fluids injected into coalbed
methane . . . production wells in undergrourid sources of drinking
water (USDWs).” ‘̂̂
In 2004, the EPA’s study on potential impacts on USDWs found
that injection of hydrofracking fluids posed “minimal threat to
USDWs,” yet admitted that certain chemicals sometimes used in
hydrofracking opérations caused some “environmental concerns.”^^
Following the 2004 study. Congress passed the notorious Energy
Policy Act of 2005, containing the “Halliburton Loophole,” in
31. 42 U.S.C. § 300h-l(b)(3).
32. See id. (permitting the EPA to promulgate a rule finding that a given
state no longer meets the requirements of the program).
33. Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467 (Uth Cir.
1997). The Eleventh Circuit noted that an EPA report on hydraulic
fracturing identified a “growing potential for contamination of drinking
water aquifers.” Id. at 1471 (quoting from a 1990 report by the EPA’s
Ground Water Study Committee).
34. Id. at 1469.
35. Id. at 1475.
36. Hannah Wiseman, Untested Waters: The Rise of Hydraulic Fracturing
in Oil and Gas Production and the Need to Revisit Regulation, 20
FoRDHAM ENVTL. L . REV. 115, 144 (2009).
37. Memorandum of Agreement Between the EPA and BJ Servs. Co.,
Halliburton Energy Servs., Inc., and Schlumberger Tech. Corp., at 2
(Dec. 12, 2003), available at http://www.epa.gov/ogwdwOOO/uic/pdfs/
moa uic hyd-fract .
38. EPA, EVALUATION OF IMPACTS TO UNDERCROUND SOURCES OF
DRINKINC WATER BY HYDRAULIC FRACTURINC OF COALBED
METHANE RESERVOIRS (2004), available at http://www.epa.gov/og
wdw/uic/pdfs/cbmstudy_attach_uic_final_fact_sheet .
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response to heavy lobbying efforts from the oil and gas industry.-”̂ The
Act amended the SDWA’s definition of “underground injection” to
exchide “the underground injection of fluids or propping agents (other
than diesel fuels) pursuant to hydraulic fracturing operations related
to oil, gas, or geothermal production activities.”*”* Thereafter, states
were no longer required to seek permits before engaging in drilling
operations as part of their UIC programs, with the exception of when
diesel fuel was injected.””
Efforts to remove the loophole have been, thus far, unfruitful. The
most salient attempt by the federal government to address
hydrofracking concerns was the Fracturing Responsibility and
Awai-eness of Chemicals Act of 2011 (FRAC Act). Proposed in both
the U.S. Senate”̂ and House,”̂ the FRAC Act would impose federal
regulation in two ways. First, the Amendment would repeal the
hydrofracking exemption to the SDWA. It would modify “underground
injection” to include “the underground injection of fluids or propping
agents pin-suant to hydraulic fractin-ing operations related to oil, gas, or
geothermal production activities.”‘”” The EPA would then have to
promulgate “inspection, monitoring, recordkeeping, and reporting
requirements” for hydrofracking operations.**^ State UIC programs that
did not require a permit before commencing hydrofracking operations
would have to modify their UIC programs to require permits and then
seek EPA approval.”*’ Additionally, the Act would have required
hydrofracking operators to disclose hydrauhc fractiu:ing chemicals.**̂
The FRAC Act faced staunch opposition from the oil and gas industry,
39. Energy Policy Act, of 2005, Pub. L. No. 109-58, § 322, 119 Stat. 594, 694
(codified as amended at 42 U.S.C. § 300h(d)(l)(B)(ii) (2006)).
40. Id.
41. Id.
42. S. 587, 112th Cong. (2011). Pennsylvania Senator Robert Casey Jr., a
Democrat, sponsored the bil! along with seven original cosponsors. The
bill went to the Senate Committee on Environmental and Pnblic Works.
On April 12, 2011, the Subcommittee on Water and Wildlife held a
hearing on the bill.
43. H.R. 1084, .112th Cong. (2011). Representative Diana DeCette, a
Democrat from Colorado, sponsored the bill along with thirty-one
original cosponsors. On March 21, 2011, the bill was referred to the
House Subcommittee on Environment and the Economy.
44. H.R. 1084, 112th Cong. § 2(a) (2011); see also S. 587, 112th Cong.
§ 2(a) (2011) (using slightly different language to reach the same
outcome as the House bill).
45. See supra notes 27-32 and accompanying text (describing the
requirements for UlC programs).
46. Id.
47. H.R. 1084, 112th Cong. § 2(b) (2011); S. 587, 112th Cong. § 2(b) (2011).
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from members of Congress, and from some envirormiental groups that
wanted regulatory decisions to be made by local and state governments. .
Both the House and Senate bills died at the expiration of the 112th
Congress in January 2013 and have yet to be reintroduced in the
113th Congress.
B. Glean Water Act
Working in conjunction with the SDWA’s regulations regarding
underground sources of drinking water, the CWA”* is designed to
“eliminate the discharge of pollutants into navigable waters” and to
attain a level of water quality that “provides for the protection and
propagation of fish, shellñsh, and wildlife and provides for recreation
in and on the water.””’ Hydrofracking involves the potential point
source discharge of flowback waters produced during drilling
operations into nearby surface waters, among other techniques of
disposal. The CWA prohibits the discharge of “point source” pollution
into the “waters of the United States'”” without obtaining a permit
under the National Pollutant Discharge Elimination System
(NPDES).^’ Like it does with the SDWA, the EPA generally grants
permitting authority to states under their respective State Pollution
Discharge Elimination Systems (SPDES) but reserves the right to
institute a federal program in the event that the state fails to subfnit
an adequate program.^^ States are required to consider “technology-
based effluent limitations” and water-quahty-based limits to achieve
water quality goals.̂ ^ The CWA also regulates indirect discharge of
wastewater by truck or through sewer systems into publicly owned
48. 33 U.S.C. §§ 1251-1387 (2006).
49. 33 U.S.C. § 1251(a).
50. 40 C.F.R. §§ 122.2, 230.3(p), (s) (2012) (defining discharges from point
sources and permits, “pollution,” and “waters of the United States”).
51. 33 U.S.C. § 1342(a)(5), (b) (2006) (“The Administrator shall authorize a
State, which he determined has the capability of administering a permit
program which will carry out the objectives of this chapter to issue
permits for discharges into the navigable waters within the jurisdiction
of such state.”).
52. 33 U.S.C. § 1342(c).
53. See 33 U.S.C. § 1311(b)(2)(A) (“[E]ffiuent limitations . . . shall require
application of the best available technology economically
achievable . . . . ” ) ; § 1312(a) (effluent hmitations “shall assure [the]
protection of public health, public water supplies, agricultural and
industrial uses, and the protection and propagation of a balanced
population of shellfish, fish and wildlife, and allow recreational activities
in and on the water”); see also 40 C.F.R. § 125.3(a) (2012)
(“Technology-based treatment requirements . . . represent the minimum
level of control that must be imposed in a permit.”).
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treatment works (POTW), which discharge directly into U.S.
waters.^
While surface water discharges have been successfully regulated
under the CWA,̂ ^ it is unhkely that drillers will need to obtain an
NPDES permit until a “solid causal connection can be made between
fracking fluid injection and injiu-ies to people and property. “̂ ‘̂
Nevertheless, the CWA is the primary source of authority governing
the disposal and treatment of flowback water.̂ ^ In many western states,
drillers dispose of flowback water in storage wells below layers of
impermeable rock, but the particular geological properties of the
Marcellus formation make comparable disposal practices physically or
economically impossible.̂ ^ Accordingly, hydrofracking companies are
much more likely to dispose of flowback fluid tlu’ough POTWs in the
Mai’cellus region than in other areas of the country.̂ ‘-̂ POTW disposal
iniphcates SPDES permits, since they are regulated point soui’ces of
potential pollutants.
G. Glean Air Act
Hydrofracking operations involve the emission of a variety of
volatile organic compounds (VOCs) and methane: pollutants that are
harmful to public health and worsen climate change.”” The CAA*̂ ‘
grants the EPA the authority to regulate emissions from stationary
sources such as gas wells.”̂ With respect to emissions from
54. Attachment to memorandum from James Hanlon, Dir. of the EPA’s
Office of Wastewater Mgmt., to the EPA Regions, Natural Gas Drilling
in the Marcellus Shale NPDES Program Frequently Asked Questions, at
6 (Mar. 16, 2011), available at http://www.epa.gov/npdes/pubs/hydro
fracturing_faq .
55. Jason Obold, Leading by Example: The Fracturing Responsibility and
Awareness of Chemicals Act of 2011 as a Catalyst for international
Drilling Reform, 23 COLO. J. lNT’b ENVTL. L. & POL’Y 473, 486 (2012)
(“The CWA has been successful at regulating the surface activities of
hydraulic fracturing operations . . . .”).
56. fd.
57. Rehecca Jo Reser & David T. Ritter, State and Federal Legislation and
Regulation of Hydraulic Fracturing, ADVOCATE: TEX. STATE BAR
LiTic. SECTION REPORT, Winter 2011, at 31, 32.
58. Id. at 32 n.l6.
59. Id.
60. See REVISED DRAFT S C E I S , supra note 3, at 7-46 (defining VOCs and
how they affect hydrofracking operations).
61. 42 U.S.C. §§ 7401-7671q (2006).
62. 42 U.S.C. §7411(a)(3) (“The term ‘stationary source’ means any
building, structure, facility, or installation which emits or may emit any
air pollutant.”).
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hydrofracking operations, the EPA has the authority to demand
reductions in Hazardous Air Pollutants'” and VOCs,’^ including
methane.”^ The CAA sets National Ambient Air Quality Standards
(NAAQS) and seeks nationwide attainment through both technology-
based and health-based standards.””
On April 17, 2012, the EPA created the first national air quality
standards for hydraulically fractured natural gas wells, designed to
reduce harmful emissions while allowing for responsible industrial
growth.”^ These rules require compliance with new emissions
standards for natural gas hydrofracking wells, storage tanks, and
other oil and gas equipment, to be achieved through the use of
“proven technologies and best practices that are in use today. “””̂ The
EPA anticipates that these regulations, when fully effective, will
achieve a 95 percent reduction of VOCs from new or modified wells,
accomphshed through a process known as “green completion,” which
utilizes speciahzed machinery to separate gas and liquid hydrocarbons
from flowback fluid.”^ The EPA claims that the new rules will provide
the oil and gas industry with savings of up to $15 million in 2015,™
63. EPA, OVERVIEW OF FINAL AMENDMENTS TO AIR REGULATIONS FOR
THE OIL AND NATURAL GAS INDUSTRY 4, available at http://www.
epa.gov/airquality/oilandgas/pdfs/20120417fs [hereinafter OVERVIEW
OF AIR REGULATION AMENDMENTS] (“EPA also must set standards for
emissions of air toxics, also called hazardous air pollutants. Air toxics
are pollutants known or suspected of causing cancer and other serious
health effects.”).
64. Id. (“The Clean Air Act requires EPA to set new source performance
standards (NSPS) for industrial categories that cause, or significantly
contribute to, air pollution that may endanger public health or welfare.
EPA is required to review these standards every eight years. The
existing NSPS—for VOCs and SO2—were issued in 1985.”).
65. Id. at 2 (“Methane, the primary constituent of natural gas, is a potent
greenhouse gas—more than 20 times as potent as carbon dioxide when
emitted directly to the atmosphere. Oil and natural gas production and
processing accounts for nearly 40 percent of all U.S. methane emissions,
making the industry the nation’s single largest methane source.”).
66. 40 C.F.R. pt. 50 (2012) (setting National Ambient Air Quality
Standards for six principal pollutants: carbon monoxide, lead, nitrogen
dioxide, ozone, particulate pollution, and sulfur dioxide).
67. OVERVIEW OF AIR REGULATION AMENDMENTS, supra note 63, at 1.
68. Oil and Natural Gas Air Pollution Standards, EPA, http://www.epa.
gov/airquality/oilandgas (last visited Apr. 10, 2013).
69. OVERVIEW OF AIR REGULATION AMENDMENTS, supra note 63, at 1.
70. Id. (“EPA’s analysis of the rules shows a cost savings of $11 to $19
million when the rules are fully implemented in 2015.”). The oil and gas
industry largely contests these economic projections and expresses
concern about overregulation. “While we understand that EPA is
required by law to periodically evaluate current standards, this sweeping
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created by the recovery of gas and condensate that would have
otherwise been lost.”̂ ‘ The EPA requires that all extraction companies
be in compliance with “green completion” requirements by January 1,
2015.”’̂ Meanwhile, companies are required to utilize combustion
devices, or “flaring,” to reduce their carbon emissions/~*
D. Comprehensive Environmental Response, Compensation, and
Liability Act
CERCLA grants the E P A authority to require the cleanup of
hazardous waste sites.^” CERCLA creates a federal “Superfund” to
support remedial actions taken by government entities, and establishes
a process by which federal and state governments, along with private
parties, can bring suit against “potentially responsible parties” (PRPs)
for the release of a “hazardous substance.”‘^
CERCLA explicitly excludes “petroleum, including crude oil . . .
natui’al gas, [and] natural gas liquids” from the definition of “hazardous
substance.”™ Despite the “petroleum exception,” the EPA may have
authority to impose future liability upon oil and gas drillers for
remediation costs for contamination because hydrofracking fluid
contains nonpetroleum substances/^ Although the current regulatory
scope under CERCLA is ambiguous, it is clear that the EPA possesses
the authority to conduct investigations under CERCLA, at the very
least, and may be authorized to regi.üate nonpetroleum pollution under
set of potentially unworkable regulations represents an overreach that
could, ironically, undercut the production of American natural gas, an
abundant energy resource that is critical to strengthening our nation’s
air quality.” Press Release, Marcellus Shale Coalition, Kathryn Z.
Klaber, MSC Statement on Proposed EPA Air Regulations (July 28,
2011), http://marceUuscoalition.org/2011/07/nisc-statement-on-proposed
-e pa-air-regulations.
71. OVERVIEW OF AIR REGULATION AMENDMENTS, supra note 63, at 2.
72. EPA, SUMMARY OF”‘ KEY CHANGES TO THE NEW SOURGE
PERFORM ANGE STANDARDS 1, available at http://www.epa.gov/air
quality/oilandgas/pdfs/20120417changes .
73. Id.; see abo Timothy Gardner S¿ Ayesha Rascoe, Fracking Rules Let
Drillers Flare Till 2015, REUTERS (Apr. 1.8, 2012, 4:31 PM), http://
www.reuters.com/article/2012/04/18/us-usa-fTacking-emissions-idUSBRE
83H0UH20120418.
74. 42 U.S.C. §§ 9601-9675 (2006).
75. 42 U.S.C. §§ 9601(14), 9607(a); see also EPA, PRP SEARCH MANUAL
(Sept. 30, 2009), available at http://www.epa.gov/oecaerth/resources/
pubiications/cleanup/superfund/prpmanual/prp-search-man-cmp-09b .
76. 42 U.S.C. § 9601(14).
77. John C. Martin et al.. Fractured Fairy Tales: The Context and Regulatory
Constraints for Hydraulic Fracturing, in DEVELOPMENT ISSUES IN MAJOR
SHALE PLAYS 3-1, 3-13 (Rocky Mtn. Min. L. Found. 2010).
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the same act.’^ The difficulty of determining the chemical makeup of
hydrofracking fluids may preclude the EPA from determining the
requisite nonpetroleum or hazardous classification of the fluid. This
difficulty can be overcome by an EPA requirement that gas drilhng
companies disclose the chemicals used so that the agency can properly
discharge its regulatory functions imder CERCLA.
E. Resource Conservation and Recovery Act
Passed by Congress in 1976, the RCRA grants the EPA the
authority to regulate all aspects of hazardous waste generation,
transportation, treatment, storage, and disposal.̂ ^ RCRA is
complimentary to CERCLA: the former is a preventative “cradle-to-
grave” statute and the latter is a remedial statute. Among other
related requirements, RCRA creates disclosure and safety standards
meant to encourage the reduction of such waste and the use of
nontoxic alternatives.*” RCRA also established a national framework
to manage nonhazardous solid wastes and underground storage
tanks.” Subchapter III of RCRA grants the EPA authority to
establish safeguards and waste management procedures to regulate
and prevent hazardous wastes.*^
Congress and the EPA reached an agreement in 1988 to exempt
oil and gas from RCRA regulation in response to heavy industry,
lobbying efforts.^ Subchapter III of RCRA explicitly exempts wastes
generated from oil and gas exploration and production^ and imposes
78. See id. (discussing the EPA’s “investigative authority” during a
hydrauMc fracturing incident in Pavillion, Wyoming).
79. 42 U.S.C. §§ 6901-6992 (2006).
80. See 42 U.S.C. §§ 6922(b) (discussing waste minimization programs); see
also EPA, RCRA: REDUCING RISK FROM WASTE 2 (Sept. 1997),
available at http://www.epa.gov/osw/inforesources/pubs/risk/risk-l
(“The primary goals of RCRA are to: Protect human health and the
environment from the potential hazards of waste disposal. Conserve
energy and natural resources. Reduce the amount of waste generated.
Ensure that wastes are managed in an environmentally sound manner.”).
81. 42 U.S.C. §§ 6941-6949a (“State or Regional [nonhazardous] Solid
Waste Plans”); § 6991 (“Regulation of Underground Storage Tanks”).
82. 42 U.S.C. §§ 6921-6939g (“Hazardous Waste Management”).
83. Jennifer Dixon, EPA Said to Bow to Political Pressure in Oil Wastes
Ruling, ASSOCIATED PRESS (July 19, 1988, 12:49 AM), available at
http://www.apnewsarchive.com/1988/epa-said-to-bow-to-political-pressure
-in-oil-wastes-ruling/id-87790d67435a0ba3eble5ecc5ce86c9c.
84. 42 U.S.C. § 6921(b)(2) (“[W]astes associated with the exploration,
development, or production of crude oil or natural gas or geothermal
energy shall be subject only to existing State or Federal regulatory
programs.”).
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strict standards upon transporters.^ This exemption was originally a
temporary measure set by Congi-ess but became permanent after the
EPA, at Congress’s urging, conducted a study that determined that
regulation of oil and gas wastes was unwarranted under RCRA.*”*
Thus, although hydrofracking fluids may contain toxic chemicals
ordinarily regulated under RCRA, the EPA lacks the authority to
regulate them.̂ ^
F. Endangered Species Ad
Additional federal authority to regulate hydrofracking may be
contained in the ESA.^ Passed in 1973, the ESA was designed to
protect both endangered and threatened species, as well as the
habitats on which they depend.**’* The ESA requires the Secretary of
the Interior, advised by the Fish and Wildlife Service and the
National Marine Fisheries Service, to give the “highest priority” to
protecting endangered species.’-̂ ° The Secretary of the Interior has the
authority to list alt terrestrial and freshwater species as either
“endangered” or “threatened,” and the Secretary of Commerce has
the equivalent authority for marine life.’-*’ All species listed as
“endangered” and most species listed as “threatened,” or “likely to
become an endangered species within the foreseeable future,”‘*’̂ are
protected from “take””-‘”‘ by public or private actors.”” Federal agency
85. 42 U.S.C. § 6923 (“Standards applicable to transporters of hazardous
waste.”).
86. Clarification of the Regulatory Determination for Wastes from the
Exploration, Development and Production of Crude Oil, Natural Cas
and Ceothermal Energy, 58 Fed. Reg. 15,284 (Mar. 12, 1993) (“[Tjhis
document only further clarifies the status of these wastes under the
RCRA . . . hazardous waste exemption . . . and does not alter the scope
of the current exemption in any way.”).
87. In spite of legislative inaction, the Obama administration is set to
review petitions to apply RCRA to produced waters and hydrofracking
fluid. See D’Angelo, supra note 16.
88. 16 U.S.C. §§ 1531-1544 (2006).
89. 16 U.S.C. § 1531(b)
90. TVA V. Hill, 437 U.S. 153, 174 (1978) (“[E]xamination of the language,
history, and structure of the [ESA] indicates beyond doubt that
Congress intended endangered species to be afforded the highest of
priorities.”).
91. 16 U.S.C. § 1533(a)(l)-(2).
92. 16 U.S.C. § 1532(6), (20).
93. 16 U.S.C. § 1532(19) (“The term ‘take’ means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage
in any such conduct.”).
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actions are not permitted to “take” or jeopardize any listed species,
not only by autonomous agency actions but also by permitting actions
of others^^—a universal need with respect to hydraulic fracturing.
Additionally, the wildlife agencies designate “critical habitats” for
each endangered or threatened species listed in the Federal Register,
specifying the range of the particular species.̂ ^ Agencies or permitted
parties are prohibited firom engaging in, funding, or authorizing any
action that would modify, adversely affect, or destroy a designated
habitat.^^ The Secretary is required to conserve and protect an
endangered or threatened species until the species is no longer
endangered or threatened.”*
The fragmentation of the natural landscape caused by road
building, heavy road use, pipeline construction, and surface-water
pollution may constitute “take” of endangered species, which might be
preventable through enforcement of the ESA provisions. In fact, many
of the most heavily fracked areas of the country contain some of the
most endangered species.”” The Secretary of the Interior might be able
94. See 16 U.S.C. § 1538(a) (stating that “taking” endangered animals is
“unlawful for any person subject to the jurisdiction of the United States”).
Similar to the ESA, the Migratory Bird Treaty Act protects migratory
bird species from dehberate or incidental “take.” 16 U.S.C. §§ 703-712
(2006). Although the Migratory Bird Treaty Act does not contain a
provision to protect-‘ a particularized habitat, it imposes strict Uability
upon any person for the death of a migratory bird, even if the death
occurs as a result of the bird drinking water from a legal retaining pond.
See United States v. FMC Corp., 572 F.2d 902, 908 (2d Cir. 1978) (“[T]he
statute does not include as an element of the offense ‘wilfully, knowingly,
recklessly, or neghgently.’ . . . Congress recognized the important pubhc
policy behind protecting migratory birds; FMC engaged in an activity
involving the manufacture of a highly toxic chemical; and FMC failed to
prevent this chemical from escaping into the pond and killing birds. This
is sufficient to impose strict liability on FMC”).
95. 16 U.S.C. § 1536(a)(2); see also Hill, 437 U.S. at 173 (“One would be
hard pressed to find a statutory provision whose terms were any plainer
than those in . . . the Endangered Species Act. Its very words
affirmatively command all federal agencies ‘to insure that actions
authorized, funded, or carried out by them do not jeopardize the
continued existence’ of an endangered species or ‘result in the
destruction or modification of habitat of such species.'” (quoting 16
U.S.C. § 1536)).
96. 16 U.S.C. § 1533(a)(3)(A)-(B) (requiring use of the “best scientific data
available” when determining a species’s critical habitat).
97. 16 U.S.C. § 1536(a)(2).
98. Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d 257, 261 (9th
Cir. 1984), cert, denied sub nom. Nevada v. Hodel, 470 U.S. 1083 (1985).
99. See Press Release, American Rivers, Upper Delaware Named America’s
Most Endangered River (June 2, 2010), available at http://www.
americanrivers.org/newsroom/press-releases/2010/teton-river-most-endang
ered-2010-6-2-2010.html (discussing how hydrofracking around a national
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to use the ESA to minimize the effect of hydrofracking on protected
species.’™ Indeed, the mere potential of hsting the sagebrush hzard of
New Mexico afforded Secretary of the Interior Ken Salazar the
leverage necessary to secure “unprecedented commitments to
voluntary conservation agreements” with the oil and gas industry.”*’
C. Toxic Substances Control Act
TSCA grants the EPA authority to require companies to report the
health, safety, and exposure information of chemical substances and
mixtm-es to the EPA.'”^ On November 23, 2011, the Obaina
administration pai’tially granted a section 21 petition from Earthjustice”^
requesting a rulemaking under sections 4 and 8, which would require
manufactiu’ers and processors to disclose chemical mixtures used during
all hydrofracking operations and to conduct toxicity testing on named
chemicals.’*’ The petition cited numerous federal regulatory “gaps,” or
oil and gas exemptions in the SDWA and RCRA, and demanded
park system near the Upper Delaware River is contaminating the water
and threatening “several endangered, at risk, or rare species Hvjing] in ihe
river and along its banks”).
100. Kalyani Robbins, Awakening the Slumbering Ciant: How Horizontal
Drilling Technology Brought the Endangered Species Act to Bear on
Hydraulic Fractumng, 63 CASE W . R E S . L. REV. 1143 (2013).
101. Following the Fish and Wildlife Service’s proposal to list the dune
sagebrush lizard in December 2010, the state governments of Texas and
New Mexico, private landowners, and oil and gas companies developed
an unprecedented 650,000-acre conservation plan to preserve the
shinnery oak dune habitat of the lizard. Upon the required “best
available science” analysis. Interior Secretary Ken Salazar stated that
the lizard faces no imminent threat of becoming endangered. The
Service will continually monitor the progress and efficacy of the
conservation efforts, retaining the right to reevaluate the listing
determination at any time. News Release, U.S. Dept. of the Interior,
Landmark Conservation Agreements Keep Dunes Sagebrush Lizard Off
the Endangered Species List in NM, TX (June 13, 2012), available at
http://www.fws.gov/soiithwest/es/Documents/R2ES/NR_for_DSL_Fi
nal_DetenTiination_13June2012 .
102. See 15 U.S.C. §§ 2601-2692 (2006) (including the authority under
section 2603 to require premanufacture notice for “new chemical
substances,” and the authority under § 2607 to regulate “inventory”
chemicals).
103. Petition from Earthjustice to EPA, Citizen Petition under Toxic
Substances Control Act Regarding the Chemical Substances and
Mixtures Used in Oil and Cas Exploration and Production (Aug. 4,
2011), available at http://www.epa.gov/oppt/chemtest/pubs/Section_
21_Petition_on_Oii_Cas_DrilIing_and_Fracking_ChemicaIs8.4.20U .
104. Eric Waeckerlin &; Joe Creen, Hydraulic Fracturing & TSCA: EPA’s
Surprising Move and its Sweeping Implications, LiSGAL BACKGROUNDER,
Feb. 24, 2012, at 1.
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further federal oversight on disclosure for chemicals used in
hydrofracking operations.'”^ Although the EPA claims that the new
rulemaking will “complement” current state disclosure requirements,
the interplay between the proposed rule and state or other federal
regulations is yet to be seen.'”^
II. N E W Y O R K : L O C A L I T I E S W I N R O U N D O N E ,
E S C A P I N G P R E E M P T I O N ‘ ” ^
The legislature in New York, like those in most states where
hydrofracking occurs, has adopted comprehensive legislation to regulate
oil and gas operations. As opposed to the federal government, whose
jurisdiction is somewhat constrained by its limited jurisdiction over
matters of property, state governments have plenary authority to
regulate their resources. The legislatures of all fifty states have also
created local governments and given them legal authority of various
tjqjes, including the power to adopt comprehensive plans, zoning, and
other land use regulations. Under that authority, localities typically
regulate industrial land uses, such as gas drilling operations, by either
prohibiting them altogether or assigning them to appropriate areas
within their jurisdiction where the intensity of industrial activities
does not adversely affect neighboring property values or the quality of
life in other parts of the community.
New York’s oil and gas statute contains language that at first
blush seems to preclude the regulation of hydrofracking under local
land use authority. The New York Oil, Gas and Solution Mining Law
(OGSML)'”« provides that
[t]he provisions of this article shall supersede all local laws or ‘
ordinances relating to the regulation of the oil, gas and solution
mining industries; but shall not supersede local government
jurisdiction over local roads or the rights of local governments
under the real property tax law.'”^
Industry attorneys, of course, read this language as expressly
preempting local land use control of the location and local impacts of
105. Id. at 2.
106. The Obama administration is also set to review petitions for increased
hydrofracking regulation under RCRA, the Emergency Planning and
Community Right to Know Act (EPCRA), and the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA). See D’Angelo, supra note 16.
107. Portions of this Part are adapted from John R. Nolon & Victoria
Polidoro, Hydrofracking: Disturbances Both Geological and Political:
Who Decides?, 44 URB. LAW. 507 (2012).
108. N.Y. ENVTL. CONSERV. LAW § 23-0303 (McKinney 2012).
109. Id. § 23-0303(2).
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gas wells. Some localities, whose lawyers interpret the language
differently, have enacted vai-ious controls on the location of gas wells
to protect the integrity of their land use plans and their local
environment. Landowners and the industry, in turn, have sued two
towns that banned gas drilling by amending their local zoning
ordinances.”” Both communities won their cases in the lower courts,
which found neither express nor implied preemption of local control of
hydrofracking in the OGSML.'” Deciding the underlying issues in
these cases will take years as they wind their way through the New
York court system.
The holdings of these first decisions are consistent with the
general understanding of local control and state preemption in New
York. Zoning authority can be curtailed when the state has
demonstrated the intent to preempt an entire field of regulation.”^
This prevents inconsistent local laws from “inhibit[ing] the operation
of the State’s general law and thereby thwart[ing] the operation of the
State’s overriding policy concerns.””^ The intent to preempt can be
explicit or can be implied through review of the state’s regulatory
scheme regarding a particular subject.””
Article IX, section 3(c) of the New York Constitution, however,
provides that “[r]ights, powers, privileges and immunities gi’anted to
local governments by this article shall be liberally construed.””^ This
constitutional requirement has also been codified by section 51 of the
Municipal Home Rule Law, which provides that home-rule powers
“shall be liberally construed.””” These requirements of liberal
construction apply to towns’ powers to enact zoning laws, which are
110. New York law delegates essentially the same degree of land use power to
three of the four types of local government that the state has created:
villages, towns, and cities. References in this Article to “towns” refer to
all three of these types of localities, unless the reference is to a
particular community. Courities in New York are considered to be local
governments but do not have the authority to adopt zoning.
111. Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458, 474
(Sup. Ct. 2012); Cooperstown Holstein Corp. v. Town of Middlefield,
943 NY.S.2d 722, 730 (Sup. Ct. 2011). New York’s Supreme Court is
the state’s trial-level court of general jurisdiction.
112. See Jancyn Mfg. Corp. v. Cnty. of Suffolk, 518 N.E.2d 903, 905 (NY.
1987) (“A local law may be ruled invalid . . . where the State has clearly
evinced a desire to preempt an entire field thereby precluding any
further local regulation.”).
113. ¡d. at 906.
114. See id. at 907 (holding that no preemption existed because the
regulatory department did not think the statute was meant to preempt
local legislation).
115. N.Y. CONST, art. ÍX, § 3(c).
116. N.Y. MuN. HOME RULE LAW § 51 (McKinney 2012).
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derived not only from specific delegations of power contained in the
Town Law,”^ but also the Municipal Home Rule Law.”* The state’s
highest court has recognized that “[o]ne of the most significant
functions of a local government is to foster productive land use within
its borders by enacting zoning ordinances.””‘ These provisions calling
for liberal interpretation of local power and extolling the importance
of local land use powers create an implicit presumption against
preemption.
The crux of the conflict between state and local power over gas
driUing in New York involves the interpretation of the term “regulation”
in the ÖGSML. If zoning laws, which regulate the use of land by, and the
location of, gas drilhng facihties, axe viewed as laws “relating to the
regulation o f the industry, they are preempted by the language of the
OGSML.’̂ ” If not, municipalities may use their zoning powers to identify
appropriate locations in the community for such driUing and impose
standards to mitigate local impacts of hydrofracking, or, in proper
instances, to prevent hydrofracking altogether.
When faced with a potential conflict between state and local zoning
laws. New York, courts attempt to harmonize local and state legislative
enactments, “thus avoiding any abridgment of the town’s powers to
regulate land use thirough zoning powers expressly delegated” in the
constitution and implemented through state statutes.’^’ It is well settled
that “[t]he mere fact that a state regulates a certain area of business
does not automatically pre-empt all local legislation which apphes to
that enterprise.'”^^
117. 5ee N.Y. TOWN LAW §§261-263 (McKinney 2012) (granting town
boards the power to regulate the size, style, density, and use of
structures for a variety of purposes); see also N.Y. GEN. CITY LAW
§ 20(24)-(25) (McKinney 2012) (granting this power to cities); N.Y.
VILLAGE LAW §§ 7-700, 7-702 (McKinney 2012) (granting this power to
the board of trustees of a village); Robert E. Kurzius, Inc. v. Inc. Vill. of
Upper Brookville, 414 N.E.2d 680, 682 (N.Y. 1980) (noting the
delegation of zoning power to village boards).
118. See, e.g., Kamhi v. Town of Yorktown, 547 N.E.2d 346, 351 (N.Y. 1989)
(recognizing towns’ power to enaict zoning rules pursuant to section 10
of the Municipal Home Rule Law); Pete Drown, Inc. v. Town Bd. of
Ellenburg, 591 N.Y.S.2d 584, 585 (App. Div. 1992) (same).
119. DJL Rest. Corp. v. City of New York, 749 N.E.2d. 186, 191 (N.Y.
2001).
120. N.Y. ENVTL. CONSERV. LAW § 23-0303(2) (McKinney 2012).
121. Frew Run Cravel Prods., Inc. v. Town of Carroll, 518 N.E.2d 920, 924
(N.Y. 1987).
122. Envirogas, Inc. v. Town of Kiantone, 447 N.Y.S.2d 221, 222 (Sup. Ct.
1982), aff’d, 454 N.Y.S.2d 694 (App. Div. 1982), motion for leave
denied, 444 N.Y.2d 1013 (N.Y. 1982).
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The New York coiu’ts have experience looking at the distinction
between zoning laws and laws that regulate business operations,
including mining. The state’s Mined Land Reclamation Law (MLRL)
contained the following preemption provision, which is similar to the
language found in the OGSML:
For the purposes stated herein, this title shall supersede ail
other state and local laws relating to the extractive mining
industry; provided, however, that nothing in this title shall be
construed to prevent any local government from enacting local
zoning ordinances or other local laws which impose stricter
mined land reclamation standards or requirements than those
found herein.’^
In Frew Run Gravel Products, Inc. v. Town of Carroll, the court
found that the legislature, in enacting the MLRL, did not intend to
preempt the provisions of a town zoning law that limited the areas of
town where sand and gi-avel mines could be established.’^” In making
its determination, the com’t conducted a three-part inquiry, looking
first at the plain language of the statute, followed by the legislative
history, and then finally to the purpose and intent of the statute.’^^
Looking at the plain meaning of the phrase “relating to the extractive
mining industry,” the court “[could not] interpret the phrase . . . as
including the Town of Carroll Zoning Ordinance.'”^^ The purpose of a
zoning ordinance is to regulate land use, and in doing so, it
“inevitably exerts an incidental control over any of the particular uses
or businesses which, like sand and gravel operations, may be allowed
in some districts but not in others.'”” The court found that this type
of incidental control through zoning was “not the type of regulatory
enactment relating to the ‘extractive mining industry’ which the
Legislature could have envisioned as being within the prohibition of
the statute.'”^ In so finding, the court recognized the différence
between a zoning law and “[ljocal regulations dealing with the actual
operation and process of mining[, which] would frustrate the statutory
purpose of [the MLRL’s standardized regulations].'”^^
123. Frew Run, 518 N.E.2d at 921 (citing N.Y. ENVTL. CONSERV. LAW § 23-
2703(2)).
124. See id. at 923 (“There is nothing in the Mined Land Reclamation Law
or its history indicating . . . the preemptive effect petitioner urges.”).
125. Id. at 922.
126. Id.
127. Id.
128. Id.
129. Id. at 923.
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In August 2011, the Town of Dry den amended its zoning
ordinance to prohibit natural gas drilling.”” The ordinance added
definitions for “Natural Gas,” “Natural Gas and/or Petroleum
Exploration,” and “Natural Gas Exploration and/or Petroleum
• Production Wastes,” and then prohibited the “Exploration for or
Extraction of Natural Gas and/or Petroleum” anywhere in the
town.’^’ The law also purports to invalidate any “permit issued by
any local, state[,] or federal agency, commission[,] or board for a use
which would violate the prohibitions of” the ordinance. ‘̂ ^
The Town of Middlefield’s land uses are predominately
agriculture, forests, and low-density residential. After studying the
potential impact of heavy industry on its rural environs and water
supply,’̂ ^ in June 2011 it amended its comprehensive plan and zoning
law to prohibit heavy industry throughout the town. Heavy industry
is broadly defined and includes “drilling of oil and gas wells” as well
as “chemical manufacturing,” “petroleum and coal processing,” and
“steel manufacturing.'”*”
The Town of Dry den’s law was challenged by Anschutz
Exploration Corporation, a Golorado-based driller and developer of
natural gas wells. The Town of Middlefield’s law was coritested by
Gooperstown Holstein Corporation, a local dairy operation that has
130. See Minutes, Town of Dryden Special Town Board Meeting, at 1, 5-15
(Aug. 2, 2011), available at http://dryden.ny.us/Board Meeting
Minutes/TB/2011/TB2011-08-02 (voting 5-0 in favor of amendments
“claxifying the town’s prohibition of natural gas exploration ajid
extraction”).
131. Notice, Town of Dryden Notice of Adoption of Amendments to Zoning
Ordinance, at 1, 2 (Aug. 3, 2011), available at http://documents.food
andwaterwatch.org/doc/Frack_Actions_DrydenNY (“No land in
the Town shall be used: to conduct any exploration for natural gas
and/or petroleum; to drill any well for natural gas and/or petroleum; to
transfer, store, process or treat natural gas and/or petroleum; or to
dispose of natural gas and/or petroleum exploration or production
wastes; or to erect any derrick, building, or other structure; or to place
any machinery or equipment for such purposes.”).
132. Id.
133. See GREENPLAN, INC., LAND USE ANALYSIS: HEAVY INDUSTRY AND
OIL, GAS OR SOLUTION MINING AND DRILLING 4 (2011), available at
http://www.otsego2000.org/documents/forwebsiteMiddlefieldLandUseAnaly
sis-Greenplan (a land use analysis prepared for the Town Board of
the Town of Middlefield that provides information on the potential
effects of zoning amendments).
134. Middlefield, N.Y., The Town of Middlefield Zoning Law, Local Law No.
1, art. II, § B(8) (2011), available at http://www.middlefieldny.com/
uploads/l/2/6/8/12682437/zoning_law_061411_2011_final .
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leased • approximately 400 acres of its land for natural gas
development.’^^
On February 21, 2012, the New York Supreme Court, Tompkins
Connty, upheld the Town of Dryden’s total ban on hydroft-acking
within its borders.’̂ ‘̂ The court’s holding was straightforward: “In
light of the similarities between the OGSML and the MLRL as it
existed at the time of Matter of Frew Run, the court is constrained to
follow that precedent in this case.'”‘*^ The court found that the
OGSML did not expressly preempt local zoning and that the town’s
zoning amendment did not regulate gas production; rather, it
regulated land use and not the operation of gas mining.
The coui’t noted that “[njone of the provisions of the OGSML
address traditional land use concerns, such as traffic, noise or industry
suitabihty for a particular community or neighborhood.'””‘̂ It cited
other preemptive statutes with provisions requiring the relevant state
agency to consider the traditional concerns of zoning in deciding
whether a permit is to be issued. “Under this construction, local
governments may exercise their powers to regulate land use to
determine where wittiin their borders gas drilling may or may not take
place, while [the Department of Environmental Conservation] regulates
all technical operational matters on a consistent statewide basis in
locations where operations are permitted by local law.'””* The provision
of the local law that invalidated any other permits authorizing drilling
was found invalid as preempted by the OGSML and was severed ft’orn
the law, while the other provisions were left in place. ‘**”
Three days later, on February 24, 2012, the Supreme Court in
Otsego County issued a decision in the Middlefield case gi-anting
summary judgment in favor of Middlefield, upholding the town’s
zoning law that banned natural gas drilling.”” After thoroughly
reviewing the legislative history of the OGSML, the court found no
provision in it to support Holstein’s position, stating,
135. Verified Complaint at 1-2, Cooperstown Holstein Corp. v. Town of
Middlefield, 943 N.S.Y.2d 722 (Sup. Ct. 2012) (No. 2011-0930), available
at http://catskillcitizens.org/learnmore/VsTownOfMiddlerield .
136. Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458, 474
(Sup. Ct. 2012).
137. Id. at 466.
138. Id. at 470.
139. Id. at 471.
140. The court found that the provision could be severed without Impairing
the underlying purpose of the zoning amendment. Id. at 474.
141. Cooperstown Holstein Corp. v. Town of Middlefield, 943 N.Y.S.2d 722,
730 (Sup. Ct. 2011).
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Neither the plain reading of the statutory language nor the
history of [the OGSML] would lead this court to conclude that
the phrase “this article shall supersede all local laws or
ordinances relating to the regulation of the oil, gas and solution
mining industries” was intended by the Legislature to abrogate
the constitutional and statutory authority vested in local
municipalities to enact legislation affecting land use.'”^
In the court’s analysis of the legislative history of the EGL, it
found that the intention of the legislature was not to preempt the
statutory authority vested in local municipalities to enact legislation
affecting land use.”’^ Rather, the legislature’s intent was to impose
uniform statewide oversight to ensure and promote efficient utilization
of a state resource.”’^ The court analyzed the policy of the state at the
time of original enactment of article 3-A of the Environmental
Gonservation Law in 1963.”’̂ It found that the provisions “fail to
specifically address therein any land use issues which would otherwise
be the. subject of a local municipality’s zoning authority as an exercise
of its police powers.”””‘ Rather, it concluded that the legislatiö^n
focused the Department of Gonservation’s (now the Department of
Environmental Gonservation, or DEG) efforts on matters that were
“regulatory in nature,” such as spacing units, integration of oil and
gas pools and fields, oil and gas leases, and the plugging of old
wells.'”^ The court also relied on case law interpreting the “strikingly
similar” provision of the MLRL, which found that “in the absence of a
clear legislative intent to preempt local control over land use, the
[MLRL] could not be read as preempting local zoning authority.'””*
Of singular importance in the Middlefield decision is the court’s
understanding of the state legislature’s intent when it initially
adopted the Environmental Gonservation Law in the early 1960s. At
that time, local zoning was forty years old and had been preceded by
decades of adopting local nuisance abatement laws prior to the advent
of zoning. It seems imprinted in the mind of the legislature to protect
local control, except where the’ legislature expressly states that
preemption of local prerogatives is essential to furthering overriding
state interests. In the Dryden and Middlefield decisions, the judiciary
142. Id. at 728 (quoting N.Y. ENVTL. CONSERV. LAW § 23-0303(2)).
143. Id.
144. Id. at 728-29.
145. Id. at 724-26.
146. Id. at 725.
147. Id. at 729 (quoting Gernatt Asphalt Prods., Inc. v. Town of Sardinia,
664 N.E.2d 1226, 1234 (N.Y. 1996)).
148. Id.
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in New York followed its trend to harmonize two legislative regimes—
one intended to impose uniform regulations on the operation of gas
drilling and the other designed to control local land use impacts,
honoring the statutes that delegate extensive land use control to
towns as well as the home-rule provisions of the State Constitution
that promise localities control over their local property, affairs, and
government.
The assessment by the two lower courts in Dryden and
Middlefield of the legislative history and preemptive effect of the
OGSML was affirmed by the Third Department Appellate Division on
May 2, 2013, when it upheld both opinions.””* In affirming the Dryden
decision by the Supreme Court, the Appellate Division made it clear
that “zoning ordinances ai’e not the type of regulatory provision that
the Legislature intended to be preempted by the OGSML”;’̂ ” that
“the Legislature’s intention was to insure uniform statewide standards
. . . in an effort to increase efficiency while minimizing waste”;’^’ and
that “nothing in the language, statutory scheme or legislative history
of the statute indicat[es] an intention to usurp the authority
traditionally delegated to municipalities to establish permissible and
prohibited uses of land within their jurisdictions.'”^^ By distinguishing
the purposes of land use regulation from “regulating the actual
operation, process and details of the oil, gas and solution mining
industries, ‘the statutes may be harmonized, thus avoiding any
abridgment of [a] town’s powers to regulate land use through zoning
powers expressly delegated in the Statute of Local Governments . . .
and the Town Law.””̂ -“*
It was not lost on the court that the matters regulated by the state
under the OGSML ai’e not the mattere traditionally regulated by
rnimicipal zoning and land use régulations. Provisions of the OGSML
“do not addi’ess traditional land use considerations, such as proximity
149. Norse Energy Corp. USA v. Town of Dryden, No. 515227, slip op. at 15
(N.Y. App. Div. May 2, 2013) (“Thus, we hold that the OGSML does
not preempt, either expressly or impiiedly, a municipality’s power to
enact a local zoning ordinance banning all activities related to the
exploration for, and the production or storage of, natural gas and
petroleum within its borders.”); Cooperstown Holstein Corp. v. Town of
Middlefield-, No. 515498, slip op. at 3 (“For the reasons set forth in
Matter of Norse Energy Coi-p. USA v. Town of Dryden, we find
plaintiffs claim to be without merit and affirm Supreme Court’s
judgment declaring that defendant’s zoning is valid.” (citation
omitted)).
150. Dryden, slip op. at 8.
151. Id. at 10-11.
152. Id. at 11.
153. id. (quoting Frew Run Cravel Prods., Inc. v. Town of Carroll, 518
N.E.2d 920, 924 (N.Y. 1987) (alterations in original)).
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to nonindustrial districts, compatibility with neighboring land use, and
noise and air pollution . . . . [T]he zoning law will dictate in which, if
any, districts drilling may occur, while the OGSML instructs operators
as to the proper spacing of the units within those districts in order to
prevent waste. “‘̂ ” These decisions ratify the importance of local control
of hydrofracking and of identifying methods of state-local coordination
as recommend in Part V.
I I I . P E N N S Y L V A N I A : P R E E M P T I O N T H W A R T E D
The tension between local and state control of hydrofracking
evident in New York is profoundly evident in recent legislative and
judicial decisions in Pennsylvania—the state in the heart of the
Marcellus region.’^^ Under prior state oil and gas law, the state courts
had determined that local governments could regulate but not prevent
hydrofracking under local zoning. Following these judicial decisions,
the state legislature adopted Act 13, which all but preempted local
control.”^° The Act explicitly required local governments to include
hydrofracking as a permitted use in all zoning districts. This Act, in
turn, was invalidated by Robinson Township v. Commonwealth, which
held that it failed to protect neighboring property owners from harm
and made irrational land use classifications.’^^ The power of
municipalities to adopt comprehensive plans and to separate land uses
through zoning, and the derivative rights of landowners, in the
Robinson court’s view, trumped state oil and gas legislation that, on
its face, preempted local regulation.
Under the former Oil and Gas Act in Pennsylvania, municipalities
were permitted to regulate the location of wells within their boundaries
through zoning, but were not allowed to ban wells outright:
Except with respect to local ordinances adopted pursuant to the
. . . Municipalities Planning Code (“MPC”) and the . . . Flood
Plain Management Act, all local ordinances and enactments
purporting to regulate oil and gas well operations regulated by
the act are hereby superseded. No ordinances or enactments
adopted pursuant to the aforementioned acts shall ‘contain
provisions which impose conditions, requirements or limitations
on the same features of oil and gas well operations regulated by
154. Id. at 14.
155. Pennsylvania has been called the “Saudi Arabia of Natural Gas.”
Elizabeth McGowan, Fracking’s Environmental Footprint to Transform
Pennsylvania Landscape, REUTERS (Apr. 25, 2011, 3:30 AM),
http://www.reuters.com/article/2011/04/25/idUS308837987220110425.
156. See 58 P A . CONS. STAT. ANN. § 3303 (West Supp. 2013).
157. Robinson Twp. v. Commonwealth, 52 A.3d 463, 484-85 (Pa. Commw.
Ct. 2012).
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this act or that accomphsh the same purposes as set forth in
this act. The Commonwealth, by this enactment, hereby
preempts and supersedes the regulation of oii and gas wells as
herein defined.’^
The Pennsylvania courts examined the preemptive scope of this
language in two cases decided on the same day in 2009, Huntley &
Huntley, Inc. v. Borough of Oakraont^^^ and Range Resources-
Appalachia, LLC v. Salem Twp.^^ In Huntley,^^* a drilling company,
Huntley & Huntley, sought review of a city council decision denying a
conditional use permit to allow drilling in a single-family residential
zone.’*’̂ The Commonwealth Court held that the locational restrictions
imposed by the Borough of Oakmont upon Huntley were on the same
topic as addressed in the Oil and Gas Act, and were, therefore,
preempted.”‘^ Upon appeal, the Pennsylvania Supreme Court sought
to determine whether the state legislature intended to leave localities
any latitude to regulate oil and gas wells.’^ It reversed the lower
court by determining that local zoning regulated a different aspect of
drilling than the Oil and Gas Act: its location rather than the
technical aspects of drilling.'”^ The Supreme Court found that the
particular language of the Act preempts only ordinances that “impose
conditions, requirements, or limitations on the same features of oil
and gas well operations,” or that “accomplish the same purposes.'”*”^
The court accepted the appellants’ contention that the “very essence
of zoning is the designation of areas where different uses are
permitted, subject to the appropriate level of municipal review,” and
158. 58 P A . CONS. STAT. ANN. § 601.602 (West 1996) (repealed 2012).
159. Huntley, Inc. v. Borough of Oakmont, 964 A.2d 855 (Pa. 2009).
160. Range Resources-Appalachia, LLC v. Salem Twp., 964 Á.2d 869 (Pa.
2009).
161. Huntley, 964 A.2d at 855.
162. Id. at 858.
163. Jd. at 859.
164. Id. at 863 (“[O]ur interpretive task is to examine the particular wording
of this provision, together with any other relevant aspect of the statute,
in order to determine whether the Legislature intended to leave room for
localities to designate certain zoning districts (such as residential ones)
where oil and gcis wells may be prohibited as a general matter.”).
165. Id. at 864 (“[We] conclude that, absent further legislative guidance,
Section 6O2’s reference to ‘features of oil and gas well operations
regulated by this act’ pertains to technical aspects of well functioning
and matters ancillary thereto (such as registration, bonding, and well
site restoration), rather than the well’s location.” (quoting 58 PA. CONS.
STAT. ANN. § 601.602 (1996))).
166. Id. at 863 (quoting 58 PA. CONS. STAT. ANN. § 601.602 (1996)).
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t h a t the legislature explicitly sought to preserve local zoning power by
distinguishing the “technical features of oil and gas operations.'””^
The court in Huntley found that the state’s interest primarily
centered on the efficient extraction and utihzation of the state’s
increasingly valuable natural resource.'”* In contrast, it noted t h a t the
borough’s core interests emanate from police power objectives
designed to protect public safety and welfare: “preserving the
character of residential neighborhoods, and encouraging ‘beneficial
and compatible land uses.”””” In finding t h a t these interests did not
overlap, the court adopted a holding from the Colorado high court:
While the governmental interests involved in oil and gas
development and in land-use control at times may overlap, the
core interests in the legitimate governmental functions are quite
distinct. The state’s interest in oil and gas development is
centered primarily on the efficient production and utilization of
the natural resources in the state. A county’s interest in land-
use control, in contrast, is one of orderly development and use
of land in a manner consistent with local demographic and .
environmental concerns. Given the rather distinct nature of
these interests, we reasonably may expect that any legislative
intent to prohibit a county from exercising its land-use
authority over those areas of the county in which oil
development or operations are taking place or are contemplated
would be clearly and unequivocally stated. We, however, find no
such clear and unequivocal statement of legislative intent in the
Oil and Gas Conservation Act.’™
Thus, while the court acknowledges the presence of some overlap in
purposes, the salient objectives of the local and state governments, it
found, do not confiict.””
In Range Resources, decided on the same day as Huntley, the
court invalidated a local law t h a t regulated the operations of drilling
rather than its location, holding that this aspect of hydrofracking
regulation was preempted by the Oil and Gas Act.”^^ The court
identified numerous examples of “substantive[] overlap” within the
ordinance in question, such as:
167. Id. at 860.
168. Id. at 864-65 (quoting 58 P A . CONS. STAT. ANN. § 601.102 (1996)).
169. Id. at 865.
170. Id. (quoting Bd. of Cnty. Comm’rs v. Bowen/Edwards Assocs., Inc., 830
P.2d 1045, 1057 (Colo. 1992)).
171. Id. at 866.
172. Range Res. Appalachia, LLC v. Salem Twp., 964 A.2d 869, 877 (Pa.
2009).
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permitting procedures specifically for oil and gas wells, . . .
bonding requirements before drilling can begin, . . .
regulat[ion of| well heads, including the capping of the same
once they are no longer in use, . . . regulat[ion of| site
restoration after drilling operations cease, . . . [and] the
requirement of restoring nearby streets to their pre-drilling
conditions regardless of whether the wear and tear on such
roadways was caused by vehicles associated with drilling
Indeed, the court concluded that many of the restrictions imposed
by the ordinance were “even more stringent than the corresponding
provisions of the Act.'”^” Thus, the court found that the ordinance in
question was “qualitatively different” from the corresponding
ordinance in Huntley, which “sought only to control the location of
wells consistent with established zoning principles.'”^^
Since the ordinance not only sought to regulate the same features
as the Oil and Gas Act, but also created regulatory obstacles to
effective implementation of the Act, the court held that the doctrine
of “conflict preemption” apphed.’^” The ordinance “reflect[ed] an
attempt by the Township to enact a comprehensive regulatory scheme
relative to oil and gas development within the municipality” and, as
such, was preempted by the Oil and Gas Act.’^
Following the Huntley and Range Resources decisions, the
Pennsylvania legislature replaced the Oil and Gas Act with Act 13,
containing a revised statutory framework for oil and gas regulation.’̂ ^
The Act explicitly preempted local zoning from regulating hydrofracking,
except with respect to setback requirements in limited aieas.’^” The Act
states:
Notwithstanding any other law to the contrary, environmental
acts are of Statewide concern and, to the extent that they
regulate oil and gas operations, occupy the entire field of
regulation, to the exclusion of all local ordinances. The
Gommonwealth by this section, preempts and supersedes the
173. Id. at 875-76.
174. Id. at 875.
175. Id. at 876.
176. Id. at 877 (citing Nutter v. Dougherty, 938 A.2d 401, 404 (Pa. 2007)).
177. Id. at 875.
178. 58 P A . CONS. STAT. ANN. §§ 2301-3504 (West Supp. 2013).
179. Id. § 3303.
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local regulation of oil and gas operations regulated by the
environmental acts, as provided in this chapter.’*”
While Act 13 ostensibly preserves the municipality’s right to
enact local zoning ordinances, it prohibits local zoning ordinances
from conflicting with chapter 32, which regulates oil and gas
operations.’^’ Among other restrictions imposed upon municipalities,
the Act requires localities to amend zoning to include oil and gas
operations in all zoning districts.’*^ This conformity requirement
creates an obvious and fundamental conflict with the Municipal
Planning Code (MPC). The MPC requires municipalities to adopt
comprehensive plans and to create zoning districts in accordance with
comprehensive plans.’^ Under Act 13, a municipality seeking to shield
a residential area, for example, from potentially dangerous
hydrofracking operations in the interest of public health and welfare
would not be able to do so.
A collection of seven municipalities, private citizens, and
environmental groups challenged the constitutionality of Act 13 in
Robinson Township.’^ The municipalities brought a substantive due
process claim, contending that Act 13 prevented them from creating
zoning ordinances with a rational connection to their comprehensive
plans, as required by the MPC, thus preventing them from fulfilling
their constitutional duty to “protect the health, safety and welfare of
their citizens.'”^*
The court explained that the zoning power was but “an extension
of the concept of public nuisance which protects owners from
activities that interfere with use and enjoyment of their property,'”*^
citing the seminal Village of Euclid v. Ambler Realty case for the idea
that “[l]and use restrictions aim to prevent problems caused by the
‘pig in the parlor instead of the barnyard.””*” Essentially, the Act
required municipalities to create zoning incompatible with their
comprehensive plans; if mining and gas operations were to be included
180. Id.
181. Id.
182. Id.
183. Robinson Twp. v. Commonwealth, 52 A.3d 463, 482 (Pa. Commw. Ct.
2012) (“The MPC requires that every municipality adopt a
comprehensive plan which, among other things, includes a land use plan
on how various areas of the community are to be used.”).
184. Id. at 468 n.3.
185. Id. at 469.
186. Id. at 481.
187. Id. at 481 (quoting Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365,
388 (1926)).
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in all zones, as the Act required, zoning ordinances would inherently
not comport with tlieir comprehensive plans.’^ Thus, the court found,
the state’s interest in regulating hydrofracking processes sits in direct
conflict with local zoning interests. When such substantive due
process conflicts appear, the court held, the judiciary “must accord
substantial deference to the preservation of rights of property
owners. “‘̂ ^ The court stated that
by requiring municipalities to violate their comprehensive plans
for gi’owth and development, [Act 13] violates substantive due
process because it does not protect the interests of neighboring
property owners from harm, alters the character of
neighborhoods and makes irrational classifications—irrational
because it requires municipalities to allow all zones, drilling
operations and impoundments, gas compressor stations, storage
and use of explosives in all zoning districts, and applies
industrial criteria to restrictions on height of structures,
screening and fencing, lighting and noise.””*
Following the Robinson decision, and pending the decision of the
Pennsylvania Supreme Court on appeal,”-” hydrofracking regulation in
Pennsylvania has reverted to the doctrine established in Himtley and
Range Resources. The courts in Pennsylvania, working with different
but seemingly preemptive state oil and gas statutes, came to roughly
the same result as the courts in New York. In both states, the judges
have found ways to harmonize the power of local governments to
adopt local land use restrictions on hydrofracking to promote local
interests with the power of the state to standardize the regulation of
the gas drilling industry.
IV. W E S T VIRGINIA AND OHIO; HYDROFRACKING L A W IN LIMBO
A. West Virginia Gas Regulation and Local Land Use Gontrol
In West Virginia, the power to adopt land use plans and zoning is
delegated to counties and incorporated municipalities. Most densely
188. Id. at 480-81 (“[T]he municipalities contend that Act 13 . . . forces
municipalities to enact zoning ordinances . . . allowing, among other
things, mining and gas operations in all zoning districts which are
incompatible with the municipalities’ comprehensive plans that
denominates different zoning districts, making zoning irrational.”).
189. Id. at 482 {quoting In re Appeal of Realen Valley Forge Greenes
Assocs., 838 A.2d 718, 728 (Pa. 2003)).
190. Id. at 484.
191. Pennslyania appealed the Gommonwealth Gourt’s ruling striking down
portions Act 13. The Pennsylvania Supreme Court heard oral argument
on October 17, 2012. Robinson Twp. v. Gommonwealth, No. 63 MAP
2012 (Pa. 2013).
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settled incorporated municipalities, such as the City of Morgantown,
have adopted land use plans and zoning, and some have used it to
prevent or limit hydrofracking. Morgantown, in fact, exercised its
extraterritorial jurisdiction under state law and banned hydrofracking
within a mile of its borders.’^^ In 2011, a lower state court in West
Virginia invalidated this local antifracking law, holding that the state
had completely preempted the field with respect to oil and gas law.’^’
The court noted that “[tjhese regulations do not provide any
exception or latitude to permit the City of Morgantown to impose a
complete ban on fracking or to regulate oil and gas development and
production.'”^”
Does this lower court opinion leave open the prospect of local
regulation that allows but limits gas drilling, particularly in light of
the fact that state gas regulation standards do not consider many of
the local impacts traditionally governed by zoning? In 2012, the
Morgantown City Council tested this notion by amending its zoning
law to prohibit gas drilhng within certain distances of schools, houses
of worship, hospitals, and residential neighborhoods.’^^ This latest
amendment raises interesting questions about the exercise of state and
local power in West Virginia.
Regarding environmental protection generally. West Virginia
statutes indicate that “[t]he state has the primary responsibility for
protecting the environment; other governmental entities, public and
private organizations and our citizens have the primary responsibility
of supporting the state in its role as protector of the environment.'””’
Statutes provide that the job of the State Department of
Environmental Protection is to “consolidate environmental regulatory
programs in a single state agency,” while also providing a
“comprehensive program for the conservation, protection, exploration,
development, enjoyment and use of the natural resources of the State
of West Virginia.'””” Case law establishes that “where an ordinance is
192. Ne. Nat. Energy, LLC v. City of Morgantown, No. ll-C-411, 2011 WL
3584376, at *1 (W. Va. Cir. Ct. Aug. 12, 2011).
193. Ne. Nat. Energy, 2011 WL 3584376, at *9 (“[T]he State’s interest in oil
and gas development and production throughout the State as set forth
in the W. VA. CODE § 22-6 et seq. (1994), provides for the exclusive
control of this area of law to be within the hands of the WVDEP.”).
194. Id.
195. Morgantown Will Try to Zone Out Most Gas Drilling, SHALEREPORTER
(June 4, 2012, 12:15 AM), http://www.shalereporter.com/government/
article_7dd089a4-adc0-llel-8543-0019bb30f31a.html.
196. W. VA. CODE ANN. § 22-l-l(a)(2) (LexisNexis 2009).
197. Id. § 22-l-l(b)(2)-(3).
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in conflict with a state law the former is invahd.'”^^ The principle is so
fundamental that “citation of authorities is unnecessary.'”^’*
State statutes delegate responsibility for regulating oil and gas to
the Depai-tment of Environmental Protection {DEP).̂ »” The DEP’s
Office of Oil and Gas (OOG) is “responsible for monitoring and
regulating all actions related to the exploration, drilling, storage and
production of oil and natiual gas.”^*” OOG inspectors are authorized to
issue orders demanding that wells cease operations if there is a violation
or potential violation and imminent danger to himians or freshwater
sources.̂ “^ Class II well operators are required to permanently dispose of
wastewater,*’̂ ™.most of which is handled through underground injection
regTilated under the state’s UIC program.^””
This less than comprehensive regulatory scheme generated
criticism of the state’s response to hydrofracking, leading the governor
to supplement legislative standards with executive requirements.
Under Executive Order 4-11, Governor Earl Ray Tomblin instructed
the DEP to issue emergency rules requiring certain gas wells to be
accompanied by an erosion and sediment control plan as well as a site
construction plan, both of which are to be approved by a registered
professional engineer.̂ **̂ The order also required a site-specific well
safety plan and set minimum standards for well construction.^”” It
further required that an applicant for a well permit submit a water
management plan if the well uses more than 210,000 gallons of water
monthly.^”^ Information required to be submitted with this plan
includes the type of water source, the anticipated withdrawal volume,
the anticipated months during which withdrawal would occur, the
planned management for the processing or disposal of wastewater, and
198. Vector Co. v. Bd. of Zoning Appeals, 184 S.E.2d 301, 304 (W. Va.
1971).
199. Id.
200. W. VA. CODE ANN. § 22-6-2(a).
201. W. VA. D B P ‘ T OF ENVTL. PROTECTION, OFFICE OF OIL AND GAS,
http://www.dep.wv.gov/oil-and-gas/Pages/defauIt.aspx (last visited
Apr. 3, 2013).
202. W. VA. C O D E § 22-6-3(a).
203. Press Release, W. Va. Dep’t of Envtl. Protection, industry Guidance,
Gas Well Drilling/Completion, Large Water Volume Fracture
Treatments, at 1, 4 (Jan. 8, 2010).
204. Pam Kasey, Pa. W. Va. A ddress Salt Problems Differently, Sl\ J.
(Charleston, W. Va.), Jan. 8, 2010, available at http://www.uppernion.org/
news/charleston/SJ-SaIt_l^gulation-8Janl0.html.
205. W. Va. Exec. Order No. 4-11, H 4(a) (July 12, 2011).
206. id. H 4(d).
207. Id. H 4(c).
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the anticipated additives in the hydrofracking fluid.^”^ Operators are
also required to record the quantity and method of management of
flowback water.̂ “^ Finally, operators must provide public notice for
any well to be located within the boundaries of a municipality. The
notice is to include the well’s location, the expected date that the
drilling will begin, and the operator’s contact information.^'”
The West Virginia legislature’s response to criticism of the
regulatory system was to adopt the Marcellus Shale Hydrofracking
Rules Bill in 2012, which significantly increased permit fees and
required gas wells to be set back at least 250 feet from a water well,
300 feet from a natural trout stream, 625 feet from occupied houses,
and 1,000 feet from a public water supply intake.^” Well operators
under this Bill must also maintain at least 100 feet between wells and
other water sources. ‘̂̂ The DEP was given the power to grant
variances from these staridards under certain circumstances.^’^
In reviewing Morgantown’s new.regulations on hydrofracking, or
those of any other zçning municipality in West Virginia, the judiciary
will be challenged to determine whether these enactments of the state
legislature, as supplemented by the Governor’s executive order,
occupy the field and preempt local regulation. Prior case law
recognized the different aspects of business that are subject to both
state and local regulation.^”’ There is a strong argument that the
interests protected by West Virginia planning and zoning statutes
extend far beyond the interests protected by existing hydrofracking
regulation. This is evident in the language of the legislation adopted
by the state legislature delegating planning and zoning authority to
incorporated municipalities and counties.̂ “^
208. Id.
209. Id. II 4(f)(iii)(l)(a).
210. Id. 1 4(g).
211. W. VA. CODE ANN. § 22-6A-12(a)-(b) (LexisNexis Supp. 2012).
212. Id.
213. Id. (“(T]he well operator may be granted a variance by the secretary
from these distance restrictions upon submission of a plan which
identifies the sufficient measures, facilities or practices to be employed
during well site construction, drilling and operations.”).
214. See Longwell v. Hodge, 297 S.E.2d 820, 825 (W. Va. 1982) (upholding
regulation of the location of a beer-selling restaurant under zoning,
despite the fact that the establishment was regulated by state law; the
purposes of the two regulatory regimes were different and no conflict
was found).
215. W. VA. CODE ANN. § 8A-3-7 (LexisNexis 2012) (setting forth
comprehensive requirements for the submission of a comprehensive plan
by the planning commission).
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These state statutes provide that the purpose of a comprehensive
plan is to guide the local legislatiu’e so that it can accomplish the
coordinated and compatible development of land and impi’ovements
within its jurisdiction. ‘̂*^ The comprehensive plan is deñned as
a process through which citizen participation and thorough
analysis are used to develop a set of strategies that establish as
clearly and practically as possible the best and most appropriate
future development of the area under the jurisdiction of the
planning commission. A comprehensive plan aids the planning
com misai on in designing and recommending to the governing
body ordinances that result in preserving and enhancing the
unique quality of life and culture in that community and in
adapting to future changes of use of an economic, physical or
social
Under the statute, additional purposes of the comprehensive plan
are to
(1) Set goals and objectives for land development . . .
(3) Coordinate all governing bodies, units of government and
other planning commissions to ensure that all comprehensive
plans and fxiture development are compatible;
(4) Create conditions favorable to health, safety, mobility,
transportation, prosperity, civic activities, recreational,
educational, cultural opportunities and historic resources; . . .
(7) Promote a sense of community, character, and identity; [and]
(8) Promote the efficient utilization of natural resources, rural
land, a,gricultural land and scenic areas . . . .'””̂
Zoning ordinances under these West Virginia statutes are to be
adopted to promote the public welfare, health, safety, comfort, and
morals of the community, preserve historic landmarks and buildings,
preserve agricultural land, and promote the orderly development of
the land.^”‘ These provisions allow local zoning to regulate the use of
the land, prohibit specific land uses, protect and enhance the physical
qualities of the community, divide the community into different zones
216. Id. § 8A-3-l(a) (“The general purpose of a comprehensive plan is to
guide a governing body to accomplish a coordinated and compatible
development of land and improvements within its territorial jurisdiction,
in accordance with present and future needs and resources.”).
217. Id. § 8A-3-l(b).
218. Id. § 8A-3-l(d).
219. Id. § 8A-3-2(b).
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for regulating the use of the land, create overlay districts and special
design districts within which specific additional development
standards will apply, regulate, the height, axea, bulk, use, and
architectural features of buildings, preserve green spaces, and require
new green spaces, landscaping, screening, and the preservation of
adequate natural light.
It is a fair question to ask whether the same legislature that
adopted this detailed and broad legislative regime to provide for the
appropriate use of the land at the local level intended to fully
preempt its exercise by the adoption of the oil and gas laws, which
focus on a much more limited set of impacts. Since the only case law
in West Virginia to date involves a complete ban on hydrofracking
and is a lower court opinion, it is possible that a full review of both
legislative schemes by a higher court will reveal a path for
harmonizing them both, as the courts did in New York and
Pennsylvania. This possibility is furthered by the legislature’s reversal
of the former rule of strict construction of local land use laws.̂ “̂
B. Ohio
In Ohio, the issue of state preemption of local land use control of
gas drilling was squarely addressed in Newbury Township Board of
Trustees v. Lomak Petroleum, Inc.””’ Under the authority granted to
it to plan and regulate development, the township amended its zoning
ordinance to prohibit drilling in all residential areas.̂ ^^ In doing so, it
relied on a long tradition of local zoning in the state.̂ ^^ In 1925, the
Ohio Supreme Court upheld the constitutionality of municipal zoning,
finding that local zoning helps to maintain the welfare of the
community.^ ‘̂’ The power to plan, zone, and regulate land use is
220. See id. % 8-1-7 (instructing courts to review local land use authority
fairly broadly). The section declares that the “enumeration of powers
and authority granted in this chapter shall not operate to exclude the
exercise of other powers and authority fairly incidental thereto or
reasonably implied and within the purposes of this chapter . . . [and t]he
provisions of this chapter shall be given full effect without regard to the
common-law rule of strict construction.” Id.
221. Newbury Twp. Bd. of Trustees v. Lomak Petrol., Inc., 583 N.E.2d 302
(Ohio 1992).
222. Id. at 306 (holding that a township may prohibit drilling in residential
areas for legitimate health and safety concerns).
223. Id. (noting that the township zoning resolution in this ca^e did not
adopt health and safety standards, which conflicted with state law that
prevented prohibition of drilling in appropriate areas, unless for health
or safety reasons).
224. Pritz V. Messer, 149 N.E. 30, 35 (Ohio 1925). This case preceded Village
of Euclid V. Ambler Realty Go., 272 U.S. 365 (1926), which affirmed the
constitutionality of local zoning, and particularly its separation of land
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vested in the state’s Ceneral Assembly pursuant to the Ohio
Constitution.^^” Throngh its home-rule provisions and enabling
statutes, the Ohio legislature and courts have given significant police
power and planning authority to regulate land use to the local
legislatures of counties, townships, and municipalities.̂ ^*^
The Obio Oil and Gas Act, chapter 1509, however, expressly
prohibits certain local land use restrictions, while allowing localities to
adopt zoning restrictions that are designed to protect the public from
the health and safety risks of drilling.^” The Newbury court noted that
the Ceneral Assembly had no desire to totally strip local
governments . . . of the power to regulate activities within their
borders. [Ohio Revised Code] Chapter 1509 attempts to strike a
balance between those aspects of oil and gas well exploration
and drilling which are reserved for state regulation and those
areas which local governments . . . may permissibly
Despite this recognition of local zoning power over hydrofracking,
the court in Newbury invalidated the total restriction of drilling in all
residential districts.’-̂ “‘̂ ‘* It noted that the residential zoning districts in
the township included significant amounts of agiicultural lands—areas
where gas companies traditionally drill.̂ ”” The court also noted that
there were no agricultural zoning districts in the township, recognized
tbat a significant amount of land in the residential districts was not
developed residentially, and questioned whether the blanket
restriction truly was motivated by public health and safety
uses, drawing on nuisance law as an analogy, and basing its holding in
part on protecting public health and safety.
225. OHIO CONST, art. II, § 1.
226. See Vill. of Hudson v. Albrecht, Inc., 458 N.E.2d 852, 855 (Ohio 1984)
(noting “that the right of the individual to use and enjoy his private
property is not unbridled but is subject to the legitimate exercise of the
loca! police power”); see aho Euclid, 272 U.S. 365; Morris v. Roseman,
118 N.E.2d 429, 431 (Ohio Ct. App. 1954) (“The enacting of a zoning
ordinance is clearly an exercise of the police power of a municipality in
protecting the public morals, safety, health and general welfare of the
people.”).
227. OHIO REV. CODE ANN. § 1509.39 (West 1996).
228. Newbury Twp. Bd. of Trustees v. Lomak Petroleum, Inc., 583 N.E.2d 302,
304 (Ohio 1992). “(Ohio Revised Code) 1509.39 preempts fche power of a
township to prohibit oil or gas well drilling in areas which are traditionally
appropriate for such activity, unless health and safety standards are being
adopted by the township zoning resolution.” M at 306.
229. Id. at 306.
230. Id. at 305.
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concerns.^ ‘̂ The effect of banning hydrofracking in residential zones in
a town with only three zoning districts—residential, commercial, and
industrial—was to confine the practice to a small portion of the
community.̂ ^^ On the strength of this logic, the court invalidated the
restriction.^’^
The court remanded for further consideration of the issue of
whether provisions of the local law that prohibited drilling within 300
feet of an inhabited structure protected public health and safety.
Objecting to the remand, a concurring justice noted that “the
majority imposes an even higher level of scrutiny to determine
whether this regulation passes statutory muster . . . . [W]e need only
determine whether it rationally promotes township health and safety,
not whether it is narrowly tailored to address such concerns.”^ ‘̂’
This decision, de facto, prevents Newbury Township from
preserving its agricultural lands for future residential use, since homes
are not likely to be developed in and around a number of gas drilling
facilities. Beyond that, the Newbury decision imposes a duty upon
local legislatures, in adopting hydrofracking restrictions, to prove that
they accomplish public health and safety objectives. This reverses the
traditional deferential posture of the courts in reviewing decisions of
legislatures, particularly with regard to zoning matters. From its
inception, zoning determinations by local legislatures have been
subjected to a rational basis test, which this decision reversed.̂ ”̂
The practical impact of Newbury is that local governments in
Ohio must adduce some evidence or argument as to how
hydrofracking regulations protect the public health and safety before
they adopt them. ‘̂̂ How, for example, could the township have
231. Id.
232. Id.
233. Id. at 306 (“Because Section 801.0 A of the Newbury Township Zoning
Resolution is not an attempt to further health and safety goals, we find
that Section 801.0 A conflicts with, and therefore is preempted by, state
law.”).
234. Id. at 309 (Wright, J., concurring in part and dissenting in part).
235. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926) (“If
these reasons, thus summarized, do not demonstrate the wisdom or
sound policy in all respects of those [zoning] restrictions . . . at least, the
reasons are sufficiently cogent to preclude us from saying, as it must be
said before the ordinance can be declared unconstitutional, that such
provisions are clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals, or general welfare.”).
236. This assertion, if correct, questions the vahdity of the October 1, 2012,
adoption by the City Council of Yellow Springs of a Bill of Rights
ordinance banning shale gas drilling and associated activities. Bob
Downing, Ohio’s Yellow Springs Adopts Community Bill of Rights,
AKRON BEACON J. ONLINE (Oct. 3, 2012), http://www.ohio.com/blogs/
drilling/ohio-utica-shale-1.291290/ohio-s-yellow-springs-adopts-community-
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Hydrofracking: State Preemption, Loeal Power, and Cooperative Covemance
proved that prohibiting hydrofracking in its extensive residential
districts was motivated by such concerns? On the one hand, this may
mean that local governments must identify, understand, and reiy on
the public health and environmental risks that attend hydrofracking
and import enough of that science to support their decisions.
Alternatively, localities may be able to demonstrate that their
antifracking laws are motivated by public health and safety concerns
by referring to existing case law in the state and the constitutional
and statutory provisions that these cases reference.
Taking this latter approach, could Newbury demonstrate that
preserving a large part of the township for current agxicultural and
future residential use protects local health and safety? On point is
Ketchel v. Bainsbridge Township,’^^’^ in which the Ohio Supreme Court
found that a three-acre minimum lot size requirement in a residential
zone was a valid requirement in order to protect underground aquifers
from being depleted by the demands brought about through
subdivision of denser, smaller lots.^^ Such a purpose is clearly tied to
protecting local public health and safety. The court ruled that “a local
zoning authority may consider the conservation of underground water
resources when enacting zoning regulations.”‘” ‘̂'”
The connection under Ohio law between protecting the public
health, safety, and welfare and preserving natural resources is
extraordinarily clear. The Ohio Constitution provides that
conservatiori, preservation, and revitalization are legitimate “public
purposes” and vests local governments with the authority to engage in
the “conservation and preservation of natural and open areas” and to
“control, prevent or minimize, clean up or remediate . . . water
contamination or pollution.”^'”‘ Among the strategies that
biII-of-rights-1.338971. Yellow Springs joins twelve other localities in
Pennsylvania and New York in passing similar local legislation. Megan
Bachman, Council Considers Drilling Ordinance—Ban Would Be First
in Ohio, YELLOW SPRINGS NEWS (Aug. 9, 2012), http://ysnews.com/
news/2012/08/council-considers-drilling-ordinance%E2%80%94-ban-would^
be-first-in-ohio. How can such municipalities support a total ban based
on public health and safety concerns? There may be responsible answers
to this question, but supporting such ordinances is certainly a heavier
lift than supporting, for example, set-back restrictions such as those
adopted in Newbury.
237. Ketchel v. Bainsbridge Twp., 557 N.E.2d 779 (Ohio 1990).
238: Jd. at 785.
239. Id. at 783.
240. OHIO CONST, art. VIII, § 2o (authorizing local government entities to
provide for the “conservation and preservation of natural and open areas
and farmlands, including by making urban areas more desirable or
suitable .for development and revitalisation; to control, prevent,
minimize, clean up, or remediate certain contamination of or pollution
from lands in the state and water contamination or pollution.”); see also
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Hydrofracking: State Preemption, Local Power, and Gooperative Govemance
municipalities in Ohio can consider in the wake of the Newbury
decision is to create conservation or environmental zones in lieu of
residential holding zones. This is because zoning laws may be enacted
for the protection of the environment or conservation of natural
resources.^'” This has been held to be a legitimate exercise of the
police powers granted to municipalities, counties, and townships to
protect the local public health, safety, and welfare.̂ “”̂ In Cash v.
Cincinnati Board of Zoning Appeals,’^’^^ the Ohio Court of Appeals
found that the purposes of a Cincinnati Environmental Quality-
Hillside District advanced the public safety, health, and welfare.̂ ”̂ In
Reed v. Rootstown Twp. Board of Zoning Appeals,'”‘^ the Ohio
Supreme Court sustained an application of an Open Space
Conservation District, which established a five-acre minimum lot
requirement for a swampy area in order to protect the ecological
balances and conserve natural resources.^”” The Ohio Supreme Court
had held that such conservation districts were a reasonable and
legitimate use of police power by the
OHIO CONST, art. II, § 36 (“Laws may be passed to encourage foresti:y
and agriculture . . . and to authorize the acquiring of other lands for
that purpose . . . [and] to provide for the conservation of the natural
resources of the state, including streams, lakes, submerged and swamp
lands and the development and regulation of water power and the
formation of drainage and conservation districts; and to provide for the
regulation of methods of mining, weighing, measuring and marketing
coal, oil, gas and all other minerals.”). This constitutional provision
gives local governments great leeway in protecting and promoting the
conservation of natural resources through the use of land use regulations
and devices.
241. See Ketchel, 557 N.E.2d at 783 (noting that resources such as
groundwater must be conserved and protected).
242. See Reed v. Rootstown Twp. Bd. of Zoning Appeals, 458 N.E.2d 840,
842 (Ohio 1984) (holding that the requirements and purposes of a
township zoning resolution were “reasonable and legitimate exercise[s] of
police power”).
243. Cash v. Cincinnati Bd. of Zoning Appeals, 690 N.E.2d 593 (Ohio Ct.
App. 1996).
244. Id. at 597. The purposes of the Cincinnati Environmental Quality-
Hillside District are “to assist the development of land and structures to
be compatible with the environment and to protect the quality of the
urban environment in those locations where the characteristics of the
environment are of significant public value and are vulnerable to
damage by development permitted under conventional zoning and
building regulations.” Id. at 595.
245. Reed, 458 N.E.2d 840.
246. Id. at 842.
247. Id. at 840.
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Hydrofracking: State Preemption, Local Power, and Gooperative Governance
These innovative zoning techniques exhibit the strength of the
power delegated to local governments and suggest a path toward
demonstrating that public health and safety concerns motivate zoning
provisions that limit hydrofracking. Such a strategy is bolstered by
the general understanding of local power under Ohio law. The Home
Rule Amendment to the Ohio Constitution, for example, states that
“[m]nnicipalities shall have authority to exercise all powers of local
self-government and to adopt and enforce within their limits such
local police, sanitary and other similar regulations, as are not in
conflict with general
V. C O O P E R A T I V E GOVERNANCE: S T A T E – L O C A L COLLABORATION
There is tension in the four Mai’cellus Shale states regarding
regulatory control of gas drilling. Debates take on an “either-or”
character, with advocates arguing to elbow out the level of
government they think least likely to meet their interests.”””‘ Now that
the power of New York towns to ban hydrofracking has been upheld
on appeal, those who oppose hydrofracking may fan the flames of
local resistance, encouraging others to follow suit. If they are
successful in this, the industry and those who will benefit from its
relatively cheap energy will lobby for Act 13-type solutions in the
form of new state legislation clearly preempting local regulation.
Rather than ask which level of government should win the battle
for control of gas drilling, it is far preferable to ask how both state
and local officials and stakeholders can be involved.̂ “‘”” As this Article
demonstrates, zoning is an important tool in the municipal
governance toolkit and should not be sacrificed for the sake of
248. OHIO CONST, art. XVIII, § 3.
249. This discussion presupposes that the federal government will remain
gridlocked legislatively and that Congress will permit only modest
interventions by the EPA, beyond those mentioned in Part I. Both state
and local governments would benefit from more aggressive federal
action, including funding much-needed scientific research regarding the
public health and environmental impacts of hydrofracking and fully
integrating the gas drilling industry into khe coverage of federal clean air
and water protections.
250. See INST. OF MED. OF THE NAT’L ACADS., ENVIRONMENTAL
DECISIONS IN THE FACE OF UNCERTAINTY 139 (2013) (“Agency
decision-making processes that involve stakeholders, including dialogues
with stakeholders about uncertainties, can demonstrate intentional
transparency and create, maintain, and enhance a relationship of trust
between the agency and stakeholders . . . . Early and continuous
involvement of stakeholders can also prevent delays that can occur when
stakeholders are not engaged in decision making until later in the
process, at which time they might take legal actions.”) “Stakeholders” is
defined in this document to include communities. Id. at 139 n.8.
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Hydrofracking: State Preemption, Local Power, and Cooperative Covemance
streamlining the gas drilling permitting process. Zoning out
hydrofracking, on the other hand, may frustrate important state
interests, particularly if it becomes widespread. Gas reserves
transcend local boundaries and states have a legitimate interest in
promoting an adequate supply of energy sources of their choice. These
tensions cannot be resolved in winner-take-all litigation or advocacy
in legislative offices and chambers. They require a concerted effort to
negotiate a process and create a framework for decision making that
provides a role for both local and state agencies and their
stakeholders.
The result of such a process might be an agreement by the state
to promulgate model zoning ordinances, such as a gas exploration
overlay zone,̂ ‘̂ and provide technical assistance to localities in how to
adapt such ordinances to their local circumstances. It may be that
communities adopt total bans in part because they do not have access
to best practices such as these or the understanding of both the law
and science necessary to employ them. State agencies that are
investing time and money in creating their own regulatory regimes
can cost effectively provide such technical assistance to localities as
part of a cooperative state-local approach to controlling local impacts
and promoting regional and statewide interests.
In New York, the DEC has proposed giving communities with an
adopted comprehensive plan component on gas drilling a method of
becoming involved in the permitting process.̂ ^^ The proposal is to
require an applicant for a gas drilling permit in a town with a
hydrofracking component of its comprehensive plan to negotiate with
local officials to conform the drilling to the plan, prior to the DEC’s
final decision on the permit.̂ ^^ But how are localities with limited
professional staff going to draft an accurate and reasonable
comprehensive plan component on hydrofracking, with its multiple
and complex impacts? Such a plan should discuss and assess all
environmental and public health risks, as well as the adverse impacts
on the particular community’s character and environment. State
agencies that are charged with regulating the oil and gas industries
can be tasked with providing information to localities to help them
draft well-informed and appropriate planning documents. This
251. See Robert H. Frelich & Neil M. Popowitz, Oil and Gas Fracking: State
and Federal Regulation Does Not Preempt Needed Local Government
Regulation, 44 URB. LAW. 533, 556-57 (2012) (discussing the oil and gas
element of the Santa Fe County Sustainable Land Development Plan,
which “can be used as a local government model for similar planning
and regulation in cities and counties where oil and gas drilling and
hydrological fracturing permits are requested, in coordination with and
supplemental to permits issued under state oil and gas legislation.”).
252. REVISED DRAFT SGEIS, supra note 3, at 26-27.
253. Id.
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Hydrofracking: State Preemption, Local Power, and Cooperative Governance
information could also guide communities in identifying measures that
can mitigate the adverse impacts of gas drilling.
One model for state-local cooperative governance is New York’s
law on siting major electric generating facilities, which preempts local
control of utihty siting but accommodates the local interest in the
permitting system it created.̂ “̂̂ This law reauthorized and revised
article X of the Public Service Law, establishing an electric generation
siting board to review and approve the siting of electric utility
generators of twenty-five megawatts or greater.̂ ^^ This board is
empowered to override local land use laws that it believes are
unreasonably burdensome,^^” but it includes two members who are
residents of the affected community.̂ ^^ Prior to the adoption of this
law and following the expiration of a previous version of article X,
locahties governed this land use and often opposed or significantly
delayed the approval of generation plants vitally needed by the state’s
power gi’id. In establishing a state-controlled siting system, the
legislature largely preempted local control but allowed for the input of
the affected locality and local stakeholders.^^ In addition to requiring
local residents to sit on the siting board, the revised article X requires
applicants to set up a fund that will enable affected local
governments, environmental groups, and the community at large to
hire experts, lawyers, and other consultants to participate in the
process of creating a scope of review for the proposed utility.̂ ^^
Applicants ai’e encouraged to enter into agreements with these parties
regarding the scope of review and a hearing examiner is appointed to
resolve any disputes that arise over the scoping.̂ “” While it does not
impose a collaborative decision-making process on affected agencies,
governments, and private actors, this legislative approach sets the
table and provides significant resources so that one can occur.
There are many more such techniques that could be agreed upon
if states pursued the intentional policy of including and working with
local governments in the regulation of hydrofi-acking, followed by
serious negotiations to create a fi-arnework and practices for working
.'”̂*” Such a policy would avoid the uncertainty and vagaries of
254. N.Y. P U B . SERV. LAW §§ 160-173 (McKinney 2011 & Supp. 2013).
255. Id. § 162.
256. Id. § 168(3)(e).
257. Id. § 160(4).
258. Id. § 166(j), (k).
259. Id. § 163(4)(a).
260. Id. § 163(5).
261. These rather modest suggestions build on a sophisticated strategy
referred to as reflexive law regimes. Commentators in the field of
reflexive law, which this Article refers to as cooperative government.
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Hydrofracking: State Preemption, Local Power, and Cooperative Governance
preemption debates and litigation, respect the critical role of local
governments in controlling land uses within their jurisdictions, offer
them the technical assistance they need to determine where
hydrofracking can occur and how to guard against its adverse
impacts, and avoid simplistic solutions such as complete proscriptions
that may be inimical to larger state interests.
suggest that positive or formal lawmaking, where higher orders of
government create and impose standards on lower-order governments
and constituents, is not up to the task of managing highly complex,
multifaceted problems such as hydrofracking, with its many local, state,
and federal benefits and potential adverse impacts. They offer
procedural solutions: reflexive laws that prescribe or suggest decision-
making processes that involve government agencies and private sector
and civic stakeholders in developing and achieving performance-based
solutions. Such laws encourage reciprocal reflection within and among
governmental agencies, regulated entities, and involved stakeholders
about their performance regarding complex issues like those raised by
the challenge of governing hydrofracking. For more on reflexive laws, see
generally Tim Iglesias, Housing Impact Assessments: Opening New
Doors for State Housing Regulations While Localism Persists, 82 O R . L .
REV. 433, 475 n.l48 (2003); Sanford E. Gaines, Reflexive Law as a Legal
Paradigm for Sustainable Development, 10 BUFF. ENVTL. L.J. 1 (2003);
Eric W. Orts, Reflexive Environmental Law, 89 Nw. U. L. REV. 1227
(1995); John G. Dernbach, Navigating the U.S. Transition to
Sustainability: Matching National Governance Ghallenges with
Appropriate Legal Tools, 44 TULSA L . REV. 93 (2008); Glayton P.
Gillette, Allocating Government for Disaster Mitigation, in LOSING
GROUND: A NATION ON EDGE 251 (John R. Nolon & Daniel B.
Rodriguez eds., 2007).
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