Efforts to stop the march of fracking rigs have gained the most traction at the local level. Voters and legislators have passed more than 400 local bans on fracking — about half of these in New York — and many more are in process.
Why is this? Well, as David Spence points out in a survey of local bans in the Texas Law Review, it’s a difference in where the costs and benefits of fracking land. Most of the costs of fracking are borne locally, by neighbors, in the form of air pollution, truck traffic and dried-up creeks.
The benefits, if any, accrue to offsite actors: the handful of companies making millions, and more politically important: state governments that collect the vast majority of taxes and fees.
But this really shouldn’t be all that complicated. Local responses to fracking should really fall under the bread-and-butter tool of municipalities everywhere: zoning.
Zoning codes! They are magical things. They determine the width of sidewalks, the size of pools, the makeup of asphalt. You have to get variances from them to change your roof, build a shed in your backyard or (in some places) build a non-regulation birdhouse. They cover almost everything, it seems, except for six-story, quaking, smoking fracking rigs. The normal process of neighbors arguing over shade trees has been massively disrupted by the lightning-quick appearance of fracking rigs, like so many alien invaders.
The local approach to fracking
In Colorado, the state’s power to regulate fossil fuels assumes that oil deposits are mobile and that they can be tapped from different places, regardless of drilling location. The “field” as a whole has to be managed. At least that’s been the assumption.
As Spence pointed out during his talk at the University of Colorado, Boulder this month, shale deposits just don’t work that way. They don’t move. You have to be at a site to frack it (although now horizontal drills can reportedly go almost 2 miles underground). Fracking is no longer a “field” – it is a local activity.
“No one has yet made the argument that this is a different kind of drilling,” said Spence, whose UT law article covered local ban efforts in Texas, Pennsylvania, New York, Colorado, Louisiana, California, Michigan and other states. “I don’t know why.”
Basically, the law around local control of fracking is so new that the challenges depend mostly on the judge (at least in Colorado). Pennsylvanians have had better luck because rights to “clean air, pure water and the preservation of environmental values” are in the state’s constitution. In Colorado, the state is actively charged with promoting oil and gas development, a statute written before anyone had an inkling of the toll of climate change.
Colorado communities share ideas
Cities and towns are mostly fending for themselves. At a recent conference in Denver called “Local Responses to Fracking: Tools You Can Use,” municipal officials came together to brainstorm and share ideas.
Some towns appointed their own local oil and gas inspectors, regardless of the fact that they had no regulatory power. Some towns instituted MOUs with individual companies as they came to town — going over emergency preparedness, traffic and more. Boulder County implemented a $37,000 impact fee for road repair.
Some cities looked at conservation easements. Some towns limited or cut off infrastructure, restricting water use, or deciding when and where to build roads. In Pitkin County, Colorado, officials purchased the water rights to land they wanted to preserve. The strategy in Garfield County, which has more than 10,000 wells built since the 1970s, actively partners with the state and gives local communities a toll-free number to call with concerns.
Fracking will evolve, as with any new technology, and the nature of it depends on community engagement. But unless the industry magically decides to change its practices, you’re going to hear a Coloradan’s words echoed by homeowners in more and more counties around the U.S.: “When else can you just put a factory with no walls in someone’s backyard?”
Photo courtesy of J.B.Pribanic