Thursday, July 3, 2014

Fracking, Zoning and the Courts

On Monday, June 30th the New York Court of Appeals, the highest court in the state, ruled that the state's Oil, Gas and Solution Mining Law (OGSML) does not preempt the towns of Dryden and Middlefield from banning fracking under their local zoning laws. At issue in the cases was the supersession clause of the OGSML, which says it “shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”

The court upheld the right of local governments to ban natural gas drilling using hydraulic fracturing techniques also known as hydrofracking or fracking. The court maintained the home rule capacity of municipalities to pass zoning laws that exclude oil, gas and hydrofracking activities in order to preserve the existing character of their communities. While this decision seems to clearly places the control of fracking in communities within those communities; since 2008 there has been a statewide moratorium on drilling in the Marcellus Shale. The moratorium has dragged on while New York assessed the effects of fracking. The New York Department of Environmental Conservation’s (DEC) draft environmental impact statement (EIS) on drilling was released in the fall of 2011 and recommended that drilling be permitted, but with conditions. The comment period was extended and the DEC began a revision to the EIS with comments from other agencies that has been on going with no end in sight.

A large swath of southwestern New York sits atop the Marcellus Shale, which is the third-largest natural gas field currently known in the world and underlies significant portions of Pennsylvania, West Virginia and Ohio. The Marcellus Shale alone is estimated to contain 500-trillion-cubic-feet of gas reserves. This resource could heat our homes for a generation or more, and power our electrical generating plants, even fuel cars either directly or through plug in hybrids. The possible impacts to our economy and environment are far reaching. The potential risks are also far reaching.

In December 2013, the Pennsylvania Supreme Court affirmed a 2012 Commonwealth Court decision striking down portions of Act 13 a 2012 Pennsylvania law that would have created a single statewide zoning for all oil and gas activities, and would in effect have taken away from the municipalities in Pennsylvania the ability to use zoning to exclude fracking of shale gas formations in residential neighborhoods. According to Richard A. Ward, Township Manager Robinson Township, PA, Act 13 turned the entire state of Pennsylvania into one large industrial zone. Robinson Township joined by several other communities challenged Act 13 and won.

The Pennsylvania state Supreme Court based its decision not in the property rights of surface landowners, but on Pennsylvania’s Environmental Rights Amendment. The Pennsylvania Supreme Court stated in its opinion that Act 13’s elimination of zoning and land use planning authority was unconstitutional because that was the primary method through which municipalities act as trustees under the Pennsylvania Environmental Rights Amendment of the state constitution. The Court found that the state cannot interfere with the constitutional duty of municipal governments to carry out the Environmental Rights Amendment.

Advances in horizontal drilling which allows a vertically drilled well to turn and run thousands of feet laterally through the earth combined with advances in hydraulic fracking, the pumping of millions of gallons of chemicals and water into shale at high pressure have increased our ability to recover natural gas from shale. Hydraulic fracking while old has made tremendous advances in the past 15 years that have made it possible to economically access this gas. Hydrofracking has increased our ability to recover natural gas buried a mile or more beneath the earth. Our knowledge of the impacts from hydrofracking has lagged behind our ability to access the gas.

In hydraulic fracking on average 2-5 million gallons of chemicals and water is pumped into the shale formation at 9,000 pounds per square inch and literally cracks the shale or breaks open existing cracks and allows the trapped natural gas to flow. Each stage of the fracking water cycle is a potential area for impact to drinking water supplies especially from human error and irresponsibly and improperly handling chemicals and contaminated water and poorly managing and protecting our water resources.

Water used for fracturing fluids is acquired from surface water or groundwater in the local area. Billions of gallons of water will be used in each region for fracking. Wastewaters from the hydraulic fracturing process (flowback or water produced in the well) needs to be properly treated before it is returned to the waters of the earth. The reality is all water on earth has been here for 4.5 billion years and no new water is being created. The fate of the water that flows back after fracturing has to be addressed, but not all fracturing fluids injected into the geologic formation are recovered. The EPA estimates that the fluids recovered range from 15-80% of the volume injected depending on the site. The long term fate of any residual fluid has just begun to be studied.

In 2011, the U.S. Environmental Protection Agency (EPA) began a series of research projects into the impacts and potential impacts of fracking on water that are scheduled for completion later this year. Data from 333 oil and gas wells from across the United States are being examined to assess the effectiveness of current well construction practices at containing gases and liquids before, during, and after hydraulic fracturing. In addition, computer models are being developed to evaluate the potential risk to water resources from water acquisition, well injection, wastewater treatment and waste water disposal from hydrofracking. The computer models are also being used to explore the possibility of subsurface gas and fluid migration from deep shale formations to overlying aquifers in different scenarios.

The effectiveness of the models will be dependent on how closely the model predicts transport behavior in rock and shale and the similarity in behavior of different formations. These studies will be the basis for future regulations for oil and gas operations. Whether the EPA will regulate oil and gas exploration nationally or leave the oversight in the hands of the states is an open question. There is an argument that water resources and geology are very local phenomena and cannot be generalized over the nation and that hydraulic fracturing should remain under local oversight. This decision from the New York Court of Appeals and the Pennsylvania decision in 2013 clearly state that local municipalities are responsible for deciding if hydrofracking within their communities is in the best interest of their community.

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