Banning Fracking Bans: The Paradox of Local Control
by Amanda Starbuck, 5/19/2015
UPDATE (June 3, 2015): On May 29, Oklahoma Governor Mary Fallin signed into law a bill prohibiting local cities and counties from banning fracking operations. The bill allows communities to issue “reasonable” restrictions dealing with traffic and noise, but all other oil and gas drilling operations will be regulated by the state. This means all drilling operations will be overseen by the Oklahoma Corporation Commission, made up of three Republicans, two of whom have ties to the petroleum industry.
There is a new paradox emerging in the fracking debate.
The oil and gas industry firmly opposes federal fracking standards, claiming that states know best how to govern their own lands. States are currently responsible for the majority of industry oversight, and rules can vary significantly among them.
But this staunch support for local control doesn’t extend to counties and cities. At least, it doesn’t when those locals are not interested in having fracking in their backyard. Drilling companies have supported state efforts to strip communities of their rights to ban fracking and repeatedly challenged local fracking bans and restrictions in court. The justification? Local restrictions lead to a "patchwork of regulations" that inhibits industry growth. Of course, differing state standards also create a patchwork of policies, but oil and gas companies don’t mind this because most states have rules or practices that favor the industry.
Local control is championed until industry profits are at stake. What the oil and gas industry actually wants is “industry control.”
Four state legislatures introduced bills this spring that would prevent local communities from regulating fracking, and other states have taken recent action against local control:
- This week, Texas Governor Greg Abbott signed a bill that prohibits communities from voting to ban fracking. The law also blocks any local rules that deal with subsurface activity or prevent drilling from taking place.
- The same week that Oklahoma’s government acknowledged that fracking is linked to the surge in earthquakes, state lawmakers passed two bills to limit cities and counties from directly regulating the oil industry. One of these bills would make ordinances that limit fracking a theft and would enable owners of mineral rights to seek monetary compensation. Both bills now go to Governor Mary Fallin for signature.
- Additional bills in Florida and New Mexico would have prevented communities from banning fracking, but they failed to advance. A Colorado bill that would have made communities liable for lost mineral royalties due to fracking bans also failed.
- The Ohio Supreme Court ruled last February that municipalities cannot restrict drilling practices if the state allows them.
- Oil and gas companies in Colorado sued in court to overturn at least three local fracking bans.
These bills and court actions come in response to the hundreds of cities and counties that have banned or restricted fracking in recent years, including four in Texas and 12 in Florida.
These bans on fracking bans threaten to override the rights of communities to govern themselves.
In Texas, the state constitution allows cities to adopt home rule charters when they have more than 5,000 residents. But apparently those charters cannot be used to ban fracking.
By contrast, the New York High Court upheld local townships’ rights to ban fracking in 2014, and the state banned fracking a few months later. But it appears more and more states are moving to squash the authority of local communities to decide for themselves whether to allow fracking.
How could a state like Texas, which has repeatedly fought against federal oversight, enact laws that trample local authority?
Financial ties to the oil and gas industry certainly play a role. Last year, the Center for Public Integrity noted that nearly one quarter of Texas legislators (or their spouses) receive mineral royalties or own stock in drilling companies. In New Mexico, the oil and gas industry represents one of the largest sources of campaign contributions.
These financial ties mean that lawmakers often have a vested interest in backing the oil and gas industry, which helps explain why they support industry interests over the preferences of community members living with the noise and pollution that fracking brings.
Some state legislators also have deep ties to the American Legislative Exchange Council (ALEC), which brings state legislators and corporate representatives together annually to privately draft model legislation. Over 2,000 out of America's nearly 7,400 state legislators belong to ALEC, which receives support from corporations like Koch Industries, DuPont Chemical Company, and ExxonMobil that have clear interests in expanding oil and gas drilling.
Phil King, a Texas state legislator, is the national chair of ALEC. He also happens to be one of the key sponsors of the bill outlawing fracking bans. New Mexico House Majority Leader Nate Gentry, who sponsored his state’s bill outlawing local control of fracking, is also an ALEC member.
In recent years, ALEC has pushed numerous state bills to prevent local governments from enacting ordinances on issues like paid sick leave and minimum wage. The flurry of bills prohibiting local control of fracking is one more example of ALEC-inspired laws that protect corporate interests at the expense of community interests and democratic processes.
Fracking brings environmental and health risks to local communities, from increased methane releases and other air pollution to groundwater contamination to earthquakes. Proponents argue the economic benefits to those who lease or own wells are worth the risks. We believe the residents of local communities – not state lawmakers or the energy companies who support their political campaigns – should decide whether the trade-offs make sense. This is the essence of self-governance.
Photo by Flickr user Victoria Buchan-Dyer, used under a Creative Commons license.