Local Land Use Regulations and Hydrofracking:

Vol. 37 No. 1

By

Jordan A. Lesser is a staff attorney with the New York State Assembly in Albany, New York.

In a relatively short period of time since 2008, the United States has seen a huge increase in oil and gas drilling activity. Through the use of a new technology, known as horizontal high-volume hydraulic fracturing, or “fracking,” large reserves of previously noneconomic oil and gas trapped in tight shale rock formations are now commercially exploitable. As the world’s population increases exponentially, and increasing wealth across the world leads to higher energy usage, the ability to extract a new source of energy has led to a “land rush” across the United States. Many communities overlying potentially profitable shale formations have been targeted by extraction companies for leasing, as natural gas prices are at historic lows for consumers and the abundance of gas has replaced some conventional coal-fired power plants across the country.1 Yet even as the leases are secured, the process remains controversial, as concerns over the possibility of groundwater contamination, air pollution, and industrialization of rural environs persist. In response to citizens’ environmental and “community character” objections, many local governments have enacted bans or moratoria on oil and gas development within their jurisdiction. These local ordinances face potential conflict with state regulatory programs governing oil and gas development. In order to resolve such disputes, the courts must evaluate if an individual ordinance is preempted based on the exact language of the ordinance, and the degree of conflict with state law.

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