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Local-State Clashes over Oil and Gas Drilling

Colorado Natural Gas Well

SOURCE: AP/David Zalubowski

A natural gas well pad sits in front of the Roan Plateau near Rifle, Colorado.

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Many parts of the nation are experiencing a boom that is unlocking large new reserves of oil and gas from shale formations. While this means an increase in domestic fuel production, it is also fostering a gusher of increasingly bitter fights among local authorities, state governments, energy companies, and landowners about who has the right to regulate where and how drilling occurs.

Spurred in large part by concerns over the drilling technique known as hydraulic fracturing, or fracking, citizens and local governments are mobilizing in support of bans or other restrictions on oil and gas drilling and, specifically, fracking.

Fracking—the high-pressure injection of water, chemicals, and sand to fracture underground rock formations and release trapped natural gas and oil—along with advances in horizontal drilling, has made it possible to develop extensive new fields of oil and gas around the United States. But the practice now used in an estimated 95 percent of U.S. oil and gas wells has elevated concerns about the health and safety of drilling, particularly in regard to those communities close to oil and gas developments.

As of late July “more than 200 municipalities in 15 states, including city councils, town boards, and county legislatures, have banned natural gas drilling that uses hydraulic fracturing,” according to OMB Watch, a nonprofit organization that follows the Office of Management and Budget. Some of these recent developments include:

  • In Colorado the state commission that oversees development of oil and gas resources has taken the city of Longmont to court to block the city’s new restrictions on drilling in residential areas and its requirement that water quality be monitored for five years after wells are hydraulically fractured. Colorado Gov. John Hickenlooper (D) has strongly backed the agency’s suit.
  • In Pennsylvania municipalities are suing the state over a new law that bars them from using their zoning authority to determine where wells can be drilled. The dispute is now before the Pennsylvania Supreme Court, after a lower court ruled in July that the law violates the state constitution.
  • In New York more than 140 towns and cities have imposed bans or moratoria on drilling, anticipating that a four-year-old statewide suspension on fracking will be lifted once environmental and health reviews are completed. Energy companies have filed lawsuits to question the legality of these local antifracking ordinances, and in October two New York judges ruled in separate decisions that local governments are allowed to prohibit drilling—decisions that are likely to be appealed.
  • In Ohio several dozen local communities have called for drilling bans, despite a state law that gives sole regulatory authority over oil and gas development to the state government. In an attempt to gain some local control over drilling, activists are pushing communities to adopt what is called “limited home rule,” which would ideally give the local communities more control over oil and gas drilling, and bills asserting the right to clean air and water.

The uprising against drilling and fracking is widespread enough that the Natural Resources Defense Council, a national environmental group, announced in late September that it has established a new program to assist fracking opponents with legal and policy advice. The Community Fracking Defense Project will operate in New York, Pennsylvania, Ohio, Illinois, and North Carolina.

“For too long, communities around the country have had little defense against the oil and gas companies that sweep into their neighborhoods and start fracking without regard for the impacts on the people who live there,” said Kate Sinding, a senior attorney in the New York office of the National Resources Defense Council.

In response to the creation of the Community Fracking Defense Project, industry spokesmen said it would hurt economic development in communities by discouraging drilling and argued that state regulation of oil and gas development has been effective thus far. John Krohn, a spokesman for the oil and gas industry group Energy in Depth, said that assisting local communities in opposing fracking was part of the National Resources Defense Council’s longstanding “anti-energy agenda.”

As oil and gas development has exploded in many states, however, the ability of state regulatory agencies—increasingly strapped for cash and short-staffed—to perform effective oversight has been called into question. A report published in late September by the Oil and Gas Accountability Project of the group Earthworks, for example, said states have been overwhelmed by the oil and gas boom of late and cannot adequately enforce their own regulations. The report concludes:

The U.S. faces a crisis in the enforcement of rules governing the oil and gas industry. The shale gas and shale oil boom has brought an expansion of oil and gas activity unseen in many parts of the country since the 19th century. Unfortunately … states are dangerously unprepared to oversee current levels of extraction, let alone increased drilling activity from the shale boom.

As National Public Radio reported in May, inspectors often face an overwhelming task: Too much work and too few people to handle it. Colorado, the NPR report said, has just 17 inspectors for 47,000 active wells. Wyoming has 12 inspectors for 60,000 wells, and North Dakota 19 inspectors for 6,600 wells.

The showdown between Colorado’s state government and the city of Longmont is a particularly telling example of the opposing pressures resulting from dramatic increases in oil and gas development in some regions of the United States. Longmont is a city of about 90,000 people located within the Niobrara Formation—a shale oil play stretching from northeast Colorado to southeast Montana—about a half-hour north of Denver. On July 17 the Longmont City Council adopted its first rewrite of city drilling rules since 2000, banning all oil and gas drilling in residential areas and requiring rigorous monitoring of the water quality of wells until five years after they are abandoned.

Two weeks later the Colorado Oil and Gas Conservation Commission sued the city in what is believed to be the first such action by the agency in its history. Gov. Hickenlooper, a former petroleum geologist, has been a leader in criticizing Longmont’s new ban, saying it would put “intense pressure” on other communities to follow suit, resulting in a hodge-podge of differing regulatory schemes. More than 82 city and county leaders in Colorado, however, have supported Longmont, asking Hickenlooper to abandon the state’s lawsuit.

“Local governments have both the right and responsibility to take action to protect the public health and well being of our citizens as well as the environment,” the officials said in their letter to the governor.

Colorado’s rules governing oil and gas development are regarded as some of the most rigorous in the United States. But they require only a modest 350-foot setback between oil and gas wells and schools and residential areas. As the environmental group Western Resource Advocates pointed out, the state requires medical marijuana dispensaries and idling diesel vehicles to be at least 1,000 feet away from schools.

It makes little sense to have every city and town devising its own requirements for all the sophisticated engineering aspects of energy development. But when it comes to determining if drilling is appropriate inside municipal boundaries or close to neighborhoods and schools, local communities ought to have some say.

Tom Kenworthy is a Senior Fellow at the Center for American Progress.

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