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Note - Like It or Not, You’re Fracked: Why State Preemption of Municipal Bans Are Unjustified in the Fracking Context


Hydraulic fracturing or “fracking,” a process of removing embedded oil or natural gas from rock, has greatly increased since the early ‘90s when horizontal drilling made previously economically inaccessible fossil fuels a profitable resource. As has been true for some time, fossil fuels mean big profits. The effects of these profits have been felt across the country—fracking is responsible for lower gas prices and drilling is taking place in regions that were previously untapped. But these profits do not come without a price—fossil fuel extraction also means big environmental concerns. While oil companies minimize or deny the environmental effects of fracking, water and air contamination, health effects, and the impending threat of climate change are all difficult concerns to ignore. Concerned about these dangers, municipalities across the country have enacted ordinances banning fracking within their borders. In response, statutes that preempt these bans, and thereby require towns to permit fracking within their borders, have emerged as a recent trend in state-level legislation.

This Note considers the environmental costs and economic benefits of fracking and examines the trends in legislation and litigation regarding municipal fracking bans. Using this background, this Note asks whether state statutes preempting local fracking bans make sense in the context of prevailing environmental preemption theories. This Note concludes by establishing that, while the prevailing theories tend to support state regulation of the technical aspects of fracking, these theories in no way support state preemption of local bans based on traditional land use considerations. Specifically, municipalities should be able to ban fracking when the decision is based on how it will affect the character and nature of a town. For example, a municipality that depends on tourism arising from its pristine natural resources, such as trout streams and forests, should not be compelled by a state-level law to permit an activity that could put its resources and the local economy in jeopardy.