Zoning as a response to hydraulic fracturing: A comparison of New York and Pennsylvania

Regardless of what side of the line we find ourselves on, the topic of unconventional natural gas extraction using the process of hydraulic fracturing in order to supplement the American energy market stirs strong emotions that have divided the national consensus. Natural gas is advertised as a cleaner and cheaper alternative to coal and oil by the oil and gas industry, and other proponents, but these deposits are located in shale beds and are currently being accessed with the controversial hydraulic fracturing horizontal drilling method. Despite the positive reasons given for the continued use of hydraulic fracturing in order to expand natural gas extraction operations, local governments in New York and Pennsylvania are passing zoning ordinances to ban, to enact moratoria or to restrict the location of natural gas drilling sites within their boundaries. Even though hydraulic fracturing started over 100 years ago, it was the invention of the horizontal technology added to the original vertical process that drastically opened and increased the possibilities of extracting natural gas for our market. This new technique was first experimented with in 2004 in the State of Pennsylvania without much fanfare, but over the past 10 years it has drastically expanded into populated areas and residents who live near drill sites have been sharing their stories of the negative impacts they have felt as a result. These details and accusations have generated distrust in the oil and gas industries claims that hydraulic fracturing is safe and distrust in the state's ability to regulate it properly in order to protect public welfare. Therefore, municipalities in Pennsylvania are using their home rule powers to pass zoning ordinances to decide where hydraulic fracturing can safely take place within their districts. The distrust in the hydraulic fracturing process from Pennsylvanians has crossed the state line into New York where there is a state wide moratorium on hydraulic fracturing. As a result of the moratorium, a growing number of municipalities are taking this time to use their zoning powers to pass ordinances banning it or to place their own moratoria in case the Governor of New York decides to allow the permitting of its use. The passing of zoning ordinances in both states has generated a series of court cases where the oil and gas companies are taking municipalities to court claiming state law preempts local law when regulating a mineral extraction activity. As a result, the courts have become the defining factor through the use of jurisprudence in determining who possesses the regulatory authority over what, when it comes to extracting natural gas using hydraulic fracturing. As this research shows, hydraulic fracturing's exemption from federal regulations and its high impact land use has proven that zoning is a legal and logical option available to local communities to protect themselves from the expectation to extract as much natural gas as possible, where ever that may be. Therefore, the information in this paper will support zoning ordinances passed by municipalities in New York and Pennsylvania with the motivation to protect the health, safety and welfare of their communities from an industrial activity for the following reasons: the scientific community does not have the data to say hydraulic fracturing is safe, the regulatory structure overseeing the industry is weak, the courts have ruled municipalities have the legal right to regulate land use and to keep residential and industrial activities separate. These findings were additionally tested using the application of Regulatory Theory as a conceptual framework in order to validate the outcome from the literature review. Regulatory Theory asserts that when within an environment of deregulation a crisis will occur between a private enterprise that is profit motivated and those affected by it. In order to balance this crisis, moral consequences must be added to the equation of regulations which must be issued and enforced by a legal governmental body that seeks to protect public welfare and economic activities at the same time. Zoning ordinances, issued by local governments, will fit Regulatory Theories criteria to insert public welfare back into hydraulic fracturing's regulatory framework to regularize the crisis that exists within the context of this paper.