Law schools seek to create systematic approach to local control and drilling (Tuesday, May 27, 2014)

Pamela King, E&E reporter

Legal scholars are embarking on a project to bridge a regulatory gap that has pushed many municipalities to ban hydraulic fracturing within their borders.

Rather than booting out the oil and gas industry altogether, the Pace Law School Land Use Law Center and the Yale Center for Environmental Law & Policy are proposing a solution that would merge community and industry interests to buffer residents from drilling’s negative impacts while allowing them to reap its economic benefits.

"It appears that fracking is going to be going forward in most states, and in most states there are a lot of impacts of fracking that are not going to be regulated by the state agency or by the federal government," said John Nolon, a professor at Pace Law School. "So those are impacts that local governments are going to feel."

Pace has a long history in municipal training. Since 1995, the land law center’s Land Use Leadership Alliance Training Program has worked with suburban and rural communities in New York, Pennsylvania, Utah and other places to protect and restore watersheds, historic centers and farmland. Pace trainers have looked at industry developments like wind farms, examined effective local government approaches to regulating those projects and shared those strategies with community leaders who come through their program.

"When we took a look at fracking, we didn’t find that," Nolon said.

There are very few examples of communities that have created rules that strike a balance between preventing potential damage and leaving the door open for economic benefits of oil and gas development, he said. Frustrated by industry’s push and overwhelmed by the myriad impacts oil and gas extraction imposes, some towns — including many in New York, which has a statewide de facto moratorium on fracking — have banned it completely.

Nolon hopes Pace and Yale can work with community leaders to design best practices for towns that face oil and gas development. If those guidelines are successful, they could gain popularity on a larger scale.

"You begin to get a national solution out of a bottom-up process," he said.

So far, Pace and Yale have convened two workshops — in December and March — to identify the local impacts and benefits of oil and gas activity. They invited community decisionmakers from across the country to discuss approaches they have used to control energy development in their own towns.

Among the attendees was John Smith, an attorney for Pennsylvania townships that challenged parts of a state law that would have taken away municipal power to control Marcellus Shale drilling through zoning (EnergyWire, April 4).

He applauded the Pace and Yale project and said he is astonished that it has taken this long for anyone to take a systematic look at local control. Drilling in the Marcellus has been underway since the mid-2000s.

"There are so few on what I would say is our side of the fence," Smith said. "Somone has to step up and help these local governments."

Other participants included Stephen Ross, who as a Santa Fe County, N.M., attorney helped develop a rigorous drilling ordinance in 2008, and Terrence Welch, a lawyer for local governments in North Texas.

In their eyes, health, safety and surface impacts are the most concerning effects communities face from oil and gas development.

Mark Boling, president of Southwestern Energy Co.’s V+ Development Solutions, said he is open to allowing localities to determine where and, in some areas, how extraction is conducted. But technical rules should be left to state regulators with the expertise to address such issues, he said.

Municipal officials are saying, "’Don’t forget about us,’" Boling said. "By human nature, people are going to want to protect" the places where they live.

He would like to see companies sit down with community officials to discuss concerns before drilling starts.

"We always strive to be, rather than tolerated, accepted into a community," he said. "A good neighbor works through the problem."

Pace and Yale are currently analyzing findings from their December and March meetings and are working on a white paper to be released midsummer.