Note: Moving Past Preemption: Enhancing the Power of Local Governments over Hydraulic Fracturing

By Rachel A. Kitze. Full text here.

Technological improvements to a drilling technique known as hydraulic fracturing have opened up access to a century’s supply of natural gas across the United States. The cities and towns that sit above these vast deposits, however, are increasingly concerned about the transformative effect of the fracking industry on their communities. In the absence of federal regulations, state and local governments have the primary regulatory authority over fracking, but state governments have sought to preempt most or all of the traditional power of local governments over land use. This Note reviews the legal disputes that have arisen in Pennsylvania, New York and Colorado regarding the effect of state preemption on local control. In addition, it reviews the ineffective attempts of Colorado and the Delaware River Basin Commission to encourage cooperation between multiple levels of government in the regulatory process. This analysis ultimately shows that local governments are increasingly powerless to prevent or slow the spread of fracking in their communities.

This Note argues that local governments are in the best position to understand the unique effects of industrial activities like fracking on their communities, and that therefore their knowledge should be utilized in the creation of regulations. This Note proposes that states create new agencies with regulatory authority over fracking that bring together state and local representatives to create new regulations to govern fracking. These organizations would allow local government representatives to have an official and meaningful voice in the creation of regulations to help ensure the protection of the environment and character of local communities.