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Growing trend in support of municipal anti-fracking initiatives

Kate Sinding

Posted November 9, 2012

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In a demonstration of the growing trend in favor of local control over fracking siting decisions, the citizens of the cities of Longmont, CO, and Mansfield and Broadview Heights, OH, voted on Tuesday in support of measures that would ban or otherwise limit fracking and related activities within their borders.

Almost 60% of Longmont’s citizens voted in favor of so-called Ballot Question 300, which approved a charter amendment that bans fracking, as well as storage of fracking wastes, within city limits.  The measure overcame extensive and expensive (to the tune of half a million dollars) opposition by the oil and gas industry and local pro-fracking interests.  A concerted effort by grassroots activists, particularly a group called Our Health, Our Future, Our Longmont pushed the initiative over the finish line.  While industry challenges seem likely, this represents a significant first in CO.

Meanwhile, in OH, the citizens of two cities approved the addition of “environmental bills of rights” to their charters.  Both measures were drafted by the Community Environmental Legal Defense Fund, and in Broadview Heights, it was strongly supported by Mothers Against Drilling in our Neighborhoods.  This is indicative of a larger movement amongst communities in Ohio that want to have a voice in the fracking process.

Again, legal challenges may be anticipated, but the passage of these measures is historic and – as in the case of Longmont – certainly evidence of the increasing support in communities across the country for enhanced local control over whether and where fracking is allowed to occur.

In New York, where the courts have so far upheld a broad exercise of local authority over fracking, nearly 150 municipalities have now enacted bans or moratoria on fracking within their borders. Meanwhile, in Pennsylvania, many dozens of municipalities concerned about protecting their citizens and dictating where fracking should be permitted are eagerly awaiting the Supreme Court's determination as to the extent to which municipalities may do so, which is expected later this year.

With safeguards for fracking at the federal and state levels continuing to fall far short of what is necessary to protect public health and the environment, municipalities should have the right to self-determination. NRDC’s Community Fracking Defense Project supports that principal, and – whether these measures ultimately stand or fall – we are encouraged by the growing public outcry in favor of local home rule.

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Michael BerndtsonNov 9 2012 07:09 PM

Some questions. If I'm not mistaken federal regulations like RCRA and CERCLA don't apply for shale gas exploitation. However, under CERCLA liability for environmental impact could be assigned to property/facility owners, facility users, past and present owners, etc to pay for cleanup. So who would be assigned liability if groundwater were to become impacted by shale gas operations? Assume the impact is significant and similar in scope and cost of a classic Superfund Site. Wouldn't the property owner and mineral rights holders be liable to some degree along with the driller and operator(s) past or present? And wouldn't this temper the enthusiasm of residents to allow drilling?
Anyway, great work.

Kate SindingNov 12 2012 10:36 AM

Hi Michael:

Yes, you are right that - among the numerous loopholes from federal environmental statutes - wastes from oil and gas production are exempt from regulation under RCRA and CERCLA. However, the industry is not exempt from the so-called "imminent and substantial endangerment" provision of RCRA, which could expose a gas company to potential liability in the event of contamination. And there are a variety of state and common law causes of action that could also be available.

The real issue for many landowners with suspected contamination from nearby gas production has been the difficulty in proving causation. Because of inadequate baseline water and air testing, as well as insufficient investigation by regulators and the industry in many cases, landowners often find themselves with a dearth of evidence needed to establish liability.

Better regulations that require pre- and post-drilling/fracking testing, disclosure of chemical additives, and better monitoring and enforcement by state regulators could help. But to date, federal and state protections are not adequate to provide landowners with the information they really need to protect themselves and to go after the perpetrators if things do go wrong.


Michael BerndtsonNov 13 2012 09:10 AM

Thanks for your response. Very insightful. I'm glad you could ferret out the point of my question based on the stream of consciousness writing style. I'm a bit befuddled (or simply resigned) how we got to this point in environmental policy, regulation and protection - having floated away from the business a couple of years ago.

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