States Take Wait and See Approach on Fracking Regulation

A debate over how and whether to regulate hydraulic fracturing, or “fracking,” is gaining momentum in state legislatures and municipal councils across the country. Fracking refers to the method of extracting natural gas from shale rock embedded within the earth by injecting water, sand and a mixture of chemical additives deep into the ground at high pressures. The mixture breaks through rock to allow oil and gas to flow to the surface. Evolving technologies in this process have not only made fracking easier, but also much less expensive. These cuts in price have led to a shale revolution across the states, one that has completely changed the shape of the United States energy economy.

Fracking has boosted the domestic supply of crude oil and gas so dramatically that, according to NCSL, the U.S. has become the world’s largest natural gas producer and third largest oil producer. While fracking provides tremendous benefits to state economies, environmentalists have raised a number of concerns with fracking and question the repercussions on surrounding water supplies and wildlife. Furthermore, the localities within which fracking occurs are often left dealing its purported drawbacks, both financial and environmental. So far, the majority of the debates in states, cities and towns have focused on examining the proper role that state and local governments should play in regulating the beneficial but controversial activity. Only a relatively small amount of concrete policy has emerged from these debates.

To date, only two states have outright banned the practice. Vermont banned fracking in 2012, followed by New York in 2014. Earlier this year, Maryland enacted a moratorium on fracking through 2017, until the state’s Department of Environment has time to examine the issue and promulgate rules regulating the practice. Arizona, Florida, Hawaii, Illinois, Massachusetts, Nevada, New Hampshire, New Jersey, Oregon and the U.S. Congress have all proposed legislation this year that would ban the practice; none of these proposals have gone on to become law.

States and municipalities often have overlapping jurisdiction in the areas where fracking occurs and a number of local councils have taken steps to regulate the practice within their confines, often to the chagrin of state governments. Municipalities in 23 states have enacted ordinances that prohibit fracking locally. State governments in states where fracking has been a major boon have in turn begun to react to these local bans. Both Oklahoma and Texas have passed bills that prohibit the local regulation of fracking. Colorado also considered, but did not pass, a similar bill. In a rebuke to the legislative and executive branches, Oklahoma’s Supreme Court unanimously ruled that citizens of the state may sue oil and gas companies for property damage sustained during earthquakes, which have increased in the state since the introduction of fracking. Ohio’s Supreme Court in February also ruled that local governments may not regulate fracking, reserving that power to the state itself.

Just this year, a total of 31 states considered 187 bills relating to the regulation of fracking. Only a small number of these have become law, including the moratorium in Maryland and local prohibitions in Oklahoma and Texas. This indicates that while being a hot button issue for lawmakers, the majority of states are taking a wait-and-see approach, hesitant to intervene in an industry that has proved to be so economically valuable. All of the circumstances surrounding the issue of fracking – environmental and public health concerns; the benefit of boosted state economies; the amount of municipalities weighing in on the issue – have set up fracking regulation to once again be considered as a major issue during the 2016 legislative session.