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Wednesday, February 12, 2014
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BMPs for Shale Gas Development. A Path Forward

By Josh Galperin, Associate Director

Note: This post was originally published here, by the Yale Climate and Energy Institute.

Handing down its decision in Robinson Township v. Commonwealth, the Pennsylvania Supreme Court put Pennsylvania’s municipalities back in charge of regulating the land use impacts of shale gas development. Whether or not the court’s decision is sound, and whether or not municipal governance is desirable, substantial authority again lies with Pennsylvania’s municipalities, as it does in most other states. The pressing question, therefore, is what happens now.

Several months ago, researchers at the Yale Center for Environmental Law & Policy, and the Land Use Law Center at Pace Law School, with support from the Yale Climate and Energy Institute, began asking this very question, anticipating the state of governance that now prevails in Pennsylvania. Regardless of opinions on the pros and cons of “fracking”, it is undeniably a central part of America’s energy sector. Consequently it is important to understand fracking’s positive and negative local impacts and how local governments will capitalize on and manage those impacts.

Federal and state laws are well situated to address many risks of shale gas exploration, including, for example, climate impacts, some air and water pollution risks, contract terms, and royalties. However, federal and state laws do not cover other issues that are uniquely local in nature such as traffic, public safety, visual blight, reduction of property values, noise pollution, and the integrity of the land use plan. Likewise, the benefits of gas exploration—increased municipal revenue, economic development, and potential energy impacts, for instance—require local control to ensure that net benefits result.

Our research is finding interesting examples of local control of fracking.  Apart from the hundreds of localities that are banning the practice, others are regulating where it can be located within their borders and controlling uniquely local impacts. Peters Township, Pa., for example, adopted a zoning regulation that permits drilling on parcels 40 acres in size or larger and requires seismic testing prior to drilling. Longmont, Co. adopted an ordinance that excludes oil and gas operations in hazard areas and residential zoning districts, which includes planned unit development districts and mixed use zoning districts. A local law adopted in Oklahoma City, Ok. creates an oil and gas zone, defines permitted uses for the zone, requires permits for drilling, requires the drillers be insured, regulates the location of wells, has enforcement provisions, and regulates fencing, screening, landscaping, equipment, storage tanks, noise, and other nuisance effects. Finally, Santa Fe, N.M. established an oil and gas overlay district governing oil and gas exploration, drilling, production, transportation, abandonment, and remediation. It prohibits any oil or gas facility in the county as of right and requires the owner to apply for and obtain an Oil and Gas Overlay Zoning District Classification, a Special Use and Development Permit, Grading and Building Permit, and a Certificate of Completion, which may require other local, state, and federal development approvals.

In his dissenting opinion in the Robinson case, Justice Saylor wrote that natural gas is “essential the Commonwealth’s economic longevity and growth.” Conversely, Chief Justice Castille stated that removing local authority overfracking, and permitting the practice in any part of a community “compels exposure of otherwise protected areas to environmental and habitability costs associated with this particular industrial use: air, water, and soil pollution; persistent noise, lighting, and heavy vehicle traffic; and the building of facilities incongruous with the surrounding landscape.”

Our research is premised on the idea that fracking will proceed more safely, more efficiently, and with more actualization of benefits if local leaders are trained to confront the complexity, and address it in a way that best suits their constituents. To that end, Robinson is a positive development because it has returned authority to local governments. Both New York and Ohio are dealing with similar legal proceedings to determine the division of responsibility for local impacts. This state of play makes the empowerment and preparation of local decisionmakers even more important.  Regardless of one’s position on shale gas exploration and the best level of governmental control, there is no question that local leaders cannot promote benefits nor manage costs without preparation, and preparing local leaders is exactly what the Yale-Pace research team aims to do.

Our research began with a simple hypothesis that federal and state actions related to hydraulic fracturing would leave a local-governance gap. In December 2013 we hosted an expert workshop and panel in White Plains, New York. With representatives of industry, academics, environmental groups, and local government, we reached a consensus that this gap does, in fact, exist. With that assurance, we are preparing a second workshop in New Haven for March 28, 2014. At this workshop we will begin collecting best practices for governing fracking at the local level. Our expectation is that we can identify best practices that involve regulation, but also non-regulatory ideas that promote opening dialogues between communities and industry, establish community benefit agreements, or other flexible options that allow localities to identify and manage negative impacts while capturing the positive outcomes of new industry and a new energy option.

Based on the information we gather at these two expert events, we will develop model planning documents, non-regulatory templates, and ordinances to help us offer a robust training program to equip local leaders, and the professionals who serve them, to deal confidently with the growing role of hydraulic fracturing.

In his opinion in Robinson, Chief Justice Castille wrote: “By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” On the other hand, Justice Eakin dissented, stating: “our unique shale resource can benefit all citizens; indeed the resource already has resurrected many local economies, though not without cost.” We agree with both of these perspectives, and the best way to rectify them is to train those who are most impacted to make informed decisions based on complete information.

Posted in: Environmental Law & GovernanceEnergy & Climate

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