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Defining and Closing the Hydraulic Fracturing Governance Gap

57 Pages Posted: 8 Apr 2016 Last revised: 3 Mar 2017

Grace Heusner

Yale University, Law School, Students

Allison Sloto

Yale University, School of Forestry and Environmental Studies, Students

Joshua Ulan Galperin

Yale Law School; Yale School of Forestry and Environmental Studies

Date Written: April 6, 2016

Abstract

As recent examples in Texas and Colorado have shown, if local governments ban fracking, they risk pushback from state governments. This pushback, in turn, can result in preemption making an outright local ban on fracking self-defeating because it could ultimately result in less local control over the impacts of hydraulic fracturing. Given this potentially self-defeating nature of local fracking bans, local governments should address the impacts of fracking through more traditional local governance mechanisms that do not pose as great a risk to local authority.

On this premise, this Article seeks to make the case for the importance of, and authority for, local leadership of fracking governance. We present an overview of the federal and state laws that address fracking and describe the traditional scope of local land use authority. We next present a list of the most salient local impacts of hydraulic fracturing, including a description of the methods we employed to catalogue these local impacts. Finally, this Article concludes with a series of case studies that demonstrate different local governance mechanisms.

Because of significant gaps in the state and federal regulatory apparatus, opportunity exists for local governments to craft regulatory and non-regulatory structures that meet their communities’ needs. We believe that with more comprehensive information about the impacts of fracking, as well as regulatory and non-regulatory tools that local governments can employ, municipalities will be better able to enact policies that withstand legal scrutiny and reflect local interests.

Keywords: fracking, hydraulic fracturing, environmental law, local government, land use, oil and gas, preemption, planning, zoning

Suggested Citation

Heusner, Grace and Sloto, Allison and Galperin, Joshua Ulan, Defining and Closing the Hydraulic Fracturing Governance Gap (April 6, 2016). Denver Law Review, Vol. 95, 2017, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2759847 or http://dx.doi.org/10.2139/ssrn.2759847

Grace Heusner

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

Allison Sloto

Yale University, School of Forestry and Environmental Studies, Students ( email )

New Haven, CT 06511
United States

Joshua Ulan Galperin (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203 431 1164 (Phone)

Yale School of Forestry and Environmental Studies ( email )

New Haven, CT 06520
United States
203 432 1164 (Phone)

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