The Colorado Supreme Court recently accepted a closely watched case on hydraulic fracturing and whether two cities can restrict the practice. Longmont passed an outright ban on fracking, and Fort Collins approved a five-year moratorium. Both measures were struck down by a lower court and appealed by the cities.
In all, communities in at least 25 states have passed limits on fracking.
According to law professor David Spence at the University of Texas-Austin, cities and towns get fewer benefits from fracking than costs, including air pollution, water risks and truck noise.
“In the Eagle Ford Shale in South Texas,” Spence said, “local governments have no power to tax the trucks that drive over their small local rural roads and essentially destroy them over time.”
Oil and gas companies have consistently argued that state law trumps local restrictions. Industry has won in Texas and Oklahoma, but lost in New York.
Yet lobbyists for this same industry appear in Washington, D.C., to argue in favor of local rules, on grounds that regulators should be closer to the activities they regulate.
“Any regulated actor will seek out the path of least resistance,” Florida State law professor Hannah Wiseman said. “Industry is arguing for state control, because so far it’s where industry has tended to find friendlier regulation.”
Many energy companies have sought to raise their safety standards and to cooperate with towns. Company officials often speak of acquiring a local “social license to operate.”
Yet it’s challenging to coordinate voluntary measures for the entire sector. The shale oil and gas industries are fragmented, represented by hundreds of firms.
“There are a fair number of small and unsophisticated, and maybe irresponsible and rogue, companies,” said law professor John Nolon of Pace University in New York. “I think it’s very difficult to control the entire industry.”