Year of Award

2015

Document Type

Professional Paper

Degree Type

Master of Science (MS)

Degree Name

Environmental Studies

Department or School/College

Environmental Studies Program

Committee Chair

Vicki Watson

Commitee Members

David Shively, Michelle Bryan

Keywords

oil and gas development, hydraulic fracturing, local control, local ordinances, fracking bans, state preemption

Subject Categories

Land Use Law | Oil, Gas, and Mineral Law

Abstract

In response to the rise in unconventional oil and gas drilling and hydraulic fracturing, coupled with concerns over local environmental, social, and health impacts, and weak state regulatory oversight, many communities have chosen to assert zoning or regulatory control over oil and gas development. However, the legal framework that enables and constrains local government powers varies by state, based on diverse statutory and constitutional language as well as the preemption of local control by state agency regulations governing industry development. Through a series of case studies, this article identifies successful, legally defensible strategies for local control of oil and gas development as well as the legal constraints placed on local initiatives in select eastern and western states that have experienced oil or natural gas shale development and hydraulic fracturing within the last decade.

For each state examined (New York, Pennsylvania, Colorado, New Mexico, and Montana), this article describes the state oil and gas legislation that constrains local government action, relevant constitutional provisions that enable local government action, relevant zoning laws that support local government action, and how local government authority is delegated and interpreted. Overall, this article concludes that zoning authority, although still subject to conflict preemption, is a more effective and widely used source of authority than home rule charters. The success of zoning ordinances that assert control over mineral development can vary based on the content and intent of the ordinance, the comprehensiveness of the state’s regulatory scheme, and the scope of local authority that can be asserted. The most significant factor, however, is the extent to which local zoning authority is liberally construed and the stated purpose of a state’s oil and gas legislation. These two factors influence whether or not a conflict preemption will arise that invalidates a local ordinance.

Of the five states examined, New York is the only state in which local governments have broadly construed land use planning authority that allows them to completely prohibit any form of mineral development. Pennsylvania municipalities can also control where drilling may occur, but cannot completely prohibit mineral development, regardless of home rule authority and despite citizens’ constitutional right to a clean environment. In Montana, which has a similar constitutional right to a clean environment, only county governments are explicitly restricted from prohibiting mineral development, while municipal and citizen-initiated zoning districts have the potential to limit or prohibit mineral development. In New Mexico, since state regulations do not occupy the entire field of regulation or address local impacts, county and city governments have the authority to fill that gap with local ordinances, as long as the ordinances do not conflict with state law. In most states, such as New Mexico, Colorado, and Pennsylvania, local ordinances are in conflict with state law if they prohibit an activity that state law permits, regardless of home rule status.

In addition to discussing how home rule authority does not immunize local government action from state preemption, this article also proposes the importance of a state constitutional guarantee to a clean environment in protecting local government land use planning authority from state encroachment.

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© Copyright 2015 Gabrielle M. Ostermayer