Trust in Local Government: How States’ Legal Obligations to Protect Water Resources Can Support Local Efforts to Restrict Fracking

Abstract

Hydraulic fracturing, an oil and gas drilling technique commonly referred to as “fracking,” has experienced a profound expansion in the United States since the dawn of the twenty-first century. Providing an influx of cheap oil and gas and new job opportunities, the boom has worked wonders for the American economy. However, with the financial benefits came considerable environmental risks, such as air pollution and water contamination. With the federal government’s role in regulating fracking uncertain, the states have taken up the torch in managing the practice. Dissatisfied with state regulations, many local governments have passed local bans and moratoria to protect their communities from environmental and public health harms. But states and oil and gas interests have responded with lawsuits seeking to invalidate local fracking restrictions as inconsistent with state law. These preemption efforts have seen recent success in Colorado, where the state supreme court struck down a fracking ban in the City of Longmont and a five-year moratorium in the City of Fort Collins. Notably, the court contrasted the fracking restriction endeavors in Colorado with the success of local restrictions in Pennsylvania. Robinson Township in Pennsylvania successfully argued that Pennsylvania’s obligation to protect natural resources for the public superseded state efforts to prohibit local bans on fracking. The Colorado Supreme Court indicated that no such state obligation to the public existed in the Colorado Constitution or in Colorado common law. However, this begs the question about whether state obligations to protect water resources could bolster efforts of local governments in other states to hamper fracking.