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Mar 26, 2020
William C. Mumby
Hydraulic fracturing, an oil and gas drilling technique commonly referred to as “fracking,” has experienced a profound expansion in the United States since the dawn of the twenty-first century. Providing an influx of cheap oil and gas and new job opportunities, the boom has worked wonders for the American economy. However, with the financial benefits came considerable environmental risks, such as air pollution and water contamination. With the federal government’s role in regulating fracking uncertain, the states have taken up the torch in managing the practice. Dissatisfied with state regulations, many local governments have passed local bans and moratoria to protect their communities from environmental and public health harms. But states and oil and gas interests have responded with lawsuits seeking to invalidate local fracking restrictions as inconsistent with state law.
These preemption efforts have seen recent success in Colorado, where the state supreme court struck down a fracking ban in the City of Longmont and a five-year moratorium in the City of Fort Collins. Notably, the court contrasted the fracking restriction endeavors in Colorado with the success of local restrictions in Pennsylvania. Robinson Township in Pennsylvania successfully argued that Pennsylvania’s obligation to protect natural resources for the public superseded state efforts to prohibit local bans on fracking. The Colorado Supreme Court indicated that no such state obligation to the public existed in the Colorado Constitution or in Colorado common law. However, this begs the question about whether state obligations to protect water resources could bolster efforts of local governments in other states to hamper fracking.
This Note argues that the legal doctrine identifying this state duty to protect natural resources for the benefit of the public could and should be used in other states—specifically, California and Montana—to defend local fracking restrictions. The stronger a manifestation of the doctrine in a given state, the more likely fracking restrictions will prevail in a preemption challenge. The legal theory may find success in other western states conducting fracking, but determining its applicability requires an in-depth, case-by-case analysis. Relevant considerations include the state’s fracking regulatory scheme, the strength of the state’s obligation to protect water resources for the public benefit, the rigidity of the state’s water rights, and the degree of authority afforded to local governments. With these pieces of the legal puzzle in mind, local governments can begin to assess the likelihood of success of fracking restrictions within their jurisdictions. While this public environmental rights theory does not constitute a panacea, in the right context, it can lend crucial support to efforts to fight fracking and influence the state to impose stricter regulations or even ban the practice in certain areas.