By: Travis Van Ort, Staff Member
There is a new twist in
the debate over hydraulic fracturing (hydrofracking) and how to regulate the
process. In February, two courts
in New York issued opinions that upheld local regulation of hydrofracking. A state Supreme Court judge in Ostego
County ruled that the local municipality was “legally able to ban hydrofracking
through its zoning law,” and another state Supreme Court judge, in Tompkins
County, “found that state mining laws do not prevent local governments from
enacting fracking bans under zoning laws.” This likely will not be the last word
on the issue, as the New York rulings are expected to be appealed.
is not the first attempt by a municipality to regulate or ban the use of hydrofracking
within city or town limits. For
instance, in August, a court in West Virginia overturned the Morgantown city
ordinance that prohibited hydrofracking within city limits; in the ruling, the
judge indicated that the West Virginia Department of Environmental Protection
has “exclusive control over [that] area of law.”
rulings in New York raise three important concerns: the first two are practical concerns and the third is a
policy concern. First, the banning
of hydrofracking in areas where natural gas companies have already bought land
or acquired leases for the purposes of drilling may expose the regulating
municipality to liability. A
company that is a party to the Tompkins County case indicated that it may
“pursue a ‘takings’ claim against the town” for taking private property without
The company claims it has spent over $5
million to secure land leases in the area.
second concern is the potential chilling effect local regulation could have on
drilling for natural gas, at least in New York. New York overlies three important shale gas plays – the
Marcellus, the Utica, and the Devonian shales
– and if these Supreme Court decisions are upheld on appeal, local regulation
could inject a significant level of uncertainty into natural gas drilling in
New York. One of the attorneys in
the aforementioned cases suggested that “[n]o company will invest in leases if
they can just be abrogated by a town board vote,” and “[t]hese decisions could
be the kiss of death for the drilling industry coming [to New York State].”
While the complications from local
regulation may not be as dire as has been suggested, it seems likely that
increased local regulation or banning of hydrofracking will lead to a decrease
in interest in exploiting the gas under New York State and a decrease in
drilling. Since more than 20 local
governments have already banned or limited hydrofracking
and others are attempting to implement a ban, this is no small concern.
last concern is a policy concern.
Given the importance of natural gas, especially shale gas (which
requires hydrofracking to be commercially viable), to meeting US energy needs
now and in the future,
of local level restrictions have the potential to severely complicate the
extraction of gas in some of the key shale gas plays. The US Energy Information Agency (EIA) suggests that in the
future the US could produce more natural gas than it consumes.
If the US is unable to produce as much
gas as the EIA predicts because of local level bans or restrictions on
hydrofracking, any shortfall between domestic production and consumption will
have to be made up either through conservation and efficiency programs, the
substitution of domestically produced sources of energy like coal, or energy
 Brian Nearing, Local Drill Ban Wins 2nd Victory, Times Union, Feb. 24, 2012,
 Charles Young, Judge Denies Injunction to Uphold Fracking Ban, The Daily Anthenaeum, Aug. 23, 2011,
 Mireya Navarro, New York Judge Rules Town Can Ban Gas Hydrofracking, N.Y. Times, Feb. 21, 2012,
What is Shale Gas and Why is it Important?, U.S. Energy Info. Agency, Feb. 14, 2012,
 Nearing, supra note 1.
 Glenn Coin, Central New York Municipalities
Take Steps to Control Hydrofracking, The Post-Standard, Aug.
 Jordan Carleo-Evangelist, Albany Gas Drill Foes See Veto-proof Vote,
Times Union, Feb. 24, 2012,
What is Shale Gas and Why is it Important?, supra note 7.