Local officials from more than 200 municipalities in 15 states, including city councils, town boards, and county legislatures, have banned natural gas drilling that uses hydraulic fracturing, commonly referred to as fracking. These officials have decided that fracking poses an unacceptable risk to the drinking water, health, and future of their communities. However, state governments and corporations have started legally challenging these efforts, a move that would strip the power of democratically elected local governments to establish quality-of-life protections their constituencies want.

Background

Natural gas fracking is an extraction process in which a well is drilled and sand and fluids are pumped underground at very high pressure to cause fissures in the shale rock that contains methane gas; the well brings the gas to the surface for sale. Numerous toxic chemicals are typically added to the mixture, including benzene (a known carcinogen), toluene, and pesticides, among other harmful substances.

The process has been linked to contamination of drinking water, and the fluids involved in the process create public health and environmental hazards. Drilling each well brings an increase in air and noise pollution, as drilling equipment, water, sand, and chemicals are trucked in and gas is piped out. New studies link fracking-related activities to contaminated groundwater, air pollution, and health problems in animals and humans. A recent study from the Colorado School of Public Health found that those living within a half-mile of a natural gas drilling site faced greater risks of health problems – such as headaches, dizziness, eye irritation, fatigue, and cancer – than those who live further away.

Local Fracking Bans and Moratoriums

Local communities across the country, tired of waiting for state or federal protections,¹ are passing bans or moratoriums on fracking activity within their local jurisdictional boundaries. Many of these new laws also prohibit other activities related to the fracking process, such as the storage, use, treatment, and disposal of wastewater. In fact, in New York State alone, more than 90 towns and counties have passed local ordinances banning drilling and other fracking-related activities.

Supporters of local bans explain that blocking fracking gives their towns a chance to enact safeguards to protect the water supply, maintain infrastructure, and minimize the impact large-scale drilling will have on their towns. For instance, Creedmoor, NC, which passed a fracking ban in January, sits at the headwaters of Falls Lake, which is the primary source of drinking water for Raleigh and several Wake County towns. Mayor Darryl Moss and other council members approved the ban so steps could be taken to protect the reservoir. Creedmoor officials also expressed concerns about the impact of heavy trucks and worried about falling property values. "Our roads are already strained now and this will add more stress than is needed," Moss said.

Legal Challenges to Local Fracking Bans

Local bans have not turned out to be the simple solution that many communities were hoping for. Increasingly, corporations and state governments have been challenging the local ordinances with lawsuits. For example, the Anschutz Exploration Corporation slapped the town of Dryden, NY, with a lawsuit for passing a local fracking ban, arguing that the state’s interest in developing its energy resources preempted the town’s authority to regulate land use. In Middlefield, NY, the legal challenge to the town’s ban came from the president of Cooperstown Holdstein Corporation, a dairy farm, arguing that the town was unfairly blocking the company from using its resources. In both of these cases, the towns argued that banning drilling fell within their rights to regulate local land use, and trial judges agreed. However, both companies have appealed the rulings.

In some prior cases, courts have ruled in favor of corporations, holding that local bans are preempted by state law. For example, in June 2011, Northeast Natural Energy sued the city of Morganton, WV, for an ordinance banning fracking within the city or one mile outside of city limits. A state trial court judge ruled in favor of the energy company, holding that the state has exclusive control over oil and gas development and that the town "didn't establish that fracking threatened the community’s right to clean air and water."

In 2006, the U.S. 5th Circuit Court of Appeals ruled in favor of Energy Management Corporation, holding that the City of Shreveport, LA, did not have the right to ban drilling within 1,000 feet of its lake. The ruling reversed the decision of a federal district court, which had found that Shreveport was within its rights to enact a ban in an effort to protect its city’s water supply.

States and Local Communities Struggle over Rights

Some state officials are seeking to legislatively strip local communities of their ability to control whether fracking can occur in their areas. A number of states have passed or are considering legislation that would establish that state decisions on natural gas drilling preempt, or override, any local decisions. In Idaho and Pennsylvania, legislators have made clear commitments to expanding gas production. In an effort to ensure local concerns do not jeopardize this expansion, Pennsylvania legislators passed Act 13, a law that preempts the authority of local governments to ban gas drilling. Seven municipalities in Pennsylvania have challenged the constitutionality of the law. In Idaho, state legislators passed House Bill 464 in March, which forbids local communities from enacting ordinances to prohibit gas drilling.

In efforts to establish a better legal position for communities to win preemption challenges, a new strategy has emerged. Local communities have begun passing community-rights ordinances. In April, Las Vegas, NM, passed a "Community Bill of Rights," which seeks to elevate the civil rights of the community and of its natural resources. The ordinance declares "the right of all residents, natural communities and ecosystems to water from natural sources, to unpolluted water for use in agriculture, the rights of natural ecosystems to exist and flourish, and the rights of residents to protect their environment by enforcing these rights." Las Vegas enlisted the support of the Community Environmental Legal Defense Fund (CELDF), a Pennsylvania-based organization, to draft its ordinance.

CELDF has been helping community groups and municipalities create rights-based ordinances, which focus on a community’s rights – i.e., a community’s right to local self-government, rights to clean water, and rights of community members over corporations. According to CELDF, most fracking bans that have been overturned by the courts are based on state regulatory laws. For this reason, when a corporation sues a local municipality, the laws are stacked on behalf of the corporations, and the legal battle focuses on the violations of a corporation’s civil and constitutional rights. But, with a rights-based ordinance, the legal battle would instead be focused on the community’s democratic right to self-governance. Over 100 communities across the United States have adopted CELDF-drafted laws.

Despite potential legal action by industry and/or states and the considerable monetary costs that accompany such battles, communities continue to see local bans as a necessary step to protect their communities. Lee Einer, a Las Vegas, NM, resident, says of the risk of legal challenges, "I would rather be sued than poisoned." Besides, Einer said, "even if the ordinance is struck down, the city will be protected until that point."

Conclusion

As evidence of the public health and environmental risks involved in fracking increases, more and more communities across the country are taking matters into their own hands and enacting local bans on fracking. But the oil and gas industry has found natural gas extraction extremely profitable and is mobilizing its resources to try to retain access to shale beds. By passing "Community Rights bills," local communities are creatively changing the conversation. By making this an issue of democratic control and local choice, they should increase their chances of prevailing in court. And we expect they will expand their grassroots support in the process, since the right of local self-determination is a strongly held American value.

¹ An exemption in the 2005 Energy Policy Act prevents the U.S. Environmental Protection Agency (EPA) from monitoring or regulating fracking under the Safe Drinking Water Act. While state governments have begun establishing disclosure rules on fracking, a recent OMB Watch report found their actions to be inadequate.