Municipalities and Hydraulic Fracturing: Trends in State Preemption

Hydraulic fracturing is a technology used to extract natural gas from shale rock formations found deep beneath the earth. It raises many public health and environmental issues of concern to municipalities and planners, both urban and rural. These issues range from potential water contamination and air pollution to noise, dust, truck traffic, and even minor earthquakes. This article identifies regulatory options that municipalities and planners may consider if hydraulic fracturing is a possibility in their community. The options range from outright bans to regulating “where” and “how” hydraulic fracturing may be carried out in the community. Such municipal regulations frequently provoke opposition from gas developers, some landowners, and state legislatures that want to promote energy development. To provide examples of how such conflicts play out in practice, this article will also highlight the responses of courts and legislatures to municipal regulations in six states. The United States is in the midst of a renaissance in natural gas extraction. Domestic production increased 22 percent between 2005 and 2011.1 Much of this increase has been driven by the extraction of gas from shale formations, from which the gas was until recently irretrievable. There are large shale deposits across the United States, from Montana to the East Coast and from North Dakota to Texas. The Marcellus Shale, which underlies much of West Virginia, Pennsylvania, Ohio, and New York, is by far the largest known deposit in the United States.2 Other significant “shale gas” deposits include the Barnett Shale in Texas, the Fayetteville Shale in Arkansas, the Woodford Shale in Oklahoma, and the Haynesville Shale in Arkansas, Texas, and Louisiana.3 A variety of technological advancements, including improvements in horizontal drilling, have made it economical to drill for shale gas. But most attention has focused on one aspect of the process: hydraulic fracturing, or “fracking” for short. Fracking is the process of injecting huge quantities of water, a “propping agent” such as sand, and a variety of chemicals into a well at high pressures to create cracks in the shale and release the gas. Fracking is not a new process; it has been in use for more than 50 years. But the scale and scope have expanded significantly in the last decade. Several factors have contributed to this expansion. These include: