How Local is Local?: A Response to Professor David B. Spence's The Political Economy of Local Vetoes

15 Pages Posted: 11 Feb 2015 Last revised: 8 Apr 2016

See all articles by Joshua P. Fershee

Joshua P. Fershee

West Virginia University - College of Law

Date Written: February 9, 2015

Abstract

Professor Fershee responds to Professor David B. Spence’s article about local hydraulic fracturing bans: The Political Economy of Local Vetoes, 93 Texas L. Rev. 351 (2015). Professor Spence notes that the shale oil and gas debate provides an example of “an age-old political problem that the law is called upon to solve: the conflict between an intensely held minority viewpoint and a less intense, contrary view held by the majority.” In resolving such conflicts, Spence suggests that courts should resolve such “conflicts in ways that encourage states and local governments to regulate in ways that weigh both the costs and the benefits of shale oil and gas production fairly and fully.”

This Response suggests the Professor Spence’s test for local control is sound, but adds another factor contributing to local control. As noted above, another way of considering local control over oil and gas operations is to view local control as state-level control. This Response proceeds under the premise that each state should decide whether it wishes to allow its municipalities to exercise oil and gas related vetoes. In analyzing whether local vetoes are efficient under Professor Spence’s test, this article analyzes recent decisions in New York, Pennsylvania, and Colorado.

This Response concludes that as long as state-level regulation is the primary basis for oil and gas regulation, Professor Spence’s overarching rule that state and local governments pursue regulations seeking to balance the costs and the benefits of shale oil and gas production “fairly and fully” is a foundation for good regulation. In this sense, local (meaning state or smaller subdivisions) vetoes are critical, but how “local” the vetoes are is less important. The key, then, is ensuring that courts and regulators are actually balancing costs and benefits.

Keywords: fracking, hydraulic fracturing, ban, New York, Colorado, Pennsylvania, local veto, local control, land use, veto, economics, cities, municipalities

JEL Classification: Q4, Q40, Q48, 013, H7, H70, R52

Suggested Citation

Fershee, Joshua Paul, How Local is Local?: A Response to Professor David B. Spence's The Political Economy of Local Vetoes (February 9, 2015). Texas Law Review See Also, Vol. 93, pages 61-74, 2015; WVU Law Research Paper No. 2015-2. Available at SSRN: https://ssrn.com/abstract=2562524

Joshua Paul Fershee (Contact Author)

West Virginia University - College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States
304-293-2868 (Phone)

HOME PAGE: http://law.wvu.edu/faculty/full_time_faculty/joshua-p-fershee

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