Abstract

http://ssrn.com/abstract=2258133
 


 



Hydrofracking: State Preemption, Local Power, and Cooperative Governance


John R. Nolon


Pace University School of Law

Steven E Gavin


Pace University - Land Use Law Center

April 29, 2013

Case Western Reserve Law Review, Vol. 63, No. 4, 2013

Abstract:     
Advocates for the gas drilling technology known as hydraulic fracturing, or fracking, argue that it will bring significant economic benefits to the private and public sectors. Its opponents dispute these claims and point to significant environmental and public health risks associated with fracking - risks that must be considered in adopting government regulations needed to protect the public interest. One of the many issues raised by fracking is which level of government should regulate which aspects of the practice. This debate is complicated by the fact that the risks associated with fracking raise concerns of federal, state, and local importance and fit within existing regulatory regimes of each of these levels of government. This Article begins by describing the limited aspects of fracking that are currently regulated by the federal government, which leaves many of the risks unaddressed, opening the door for state and local regulation. This Article describes the legal tension between state and local governments in regulating fracking in the four states that contain the immense Marcellus shale formation. Its particular focus is on court decisions that determine whether local land use regulation, which typically regulates local industrial activity, has been preempted by state statutes that historically regulate gas drilling operations. This investigation suggests that the broad scope and durability of local land use power as a key feature of municipal governance tends to make courts reluctant to usurp local prerogatives in the absence of extraordinarily clear and express language of preemption in state statutes that regulate gas drilling. The Article concludes with an examination of how the legitimate interests and legal authority of all three levels of government can be integrated in a system of cooperative governance.

Number of Pages in PDF File: 44

Accepted Paper Series


Download This Paper

Date posted: April 30, 2013 ; Last revised: June 11, 2013

Suggested Citation

Nolon, John R. and Gavin, Steven E, Hydrofracking: State Preemption, Local Power, and Cooperative Governance (April 29, 2013). Case Western Reserve Law Review, Vol. 63, No. 4, 2013. Available at SSRN: http://ssrn.com/abstract=2258133

Contact Information

John R. Nolon (Contact Author)
Pace University School of Law ( email )
78 North Broadway
White Plains, NY 10603
United States
Steven E. Gavin
Pace University - Land Use Law Center ( email )
United States
Feedback to SSRN


Paper statistics
Abstract Views: 364
Downloads: 88
Download Rank: 170,373

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.437 seconds