It's a Fracking Conundrum: Environmental Justice and the Battle to Regulate Hydraulic Fracturing

Abstract

Over the past five years, the process of hydraulic fracturing, or ―fracking,‖ has become a hot-button topic in the media and the courtroom. As more information about fracking becomes publicly available, serious questions have arisen about the environmental and health hazards it poses. In light of these risks, local governments have been some of the most vocal opponents of the process, many of them going so far as to completely ban fracking within their boundaries. By contrast, several state governments have embraced the oil and gas industry in hopes of capitalizing on the revenue generated from fracking. Now both groups have turned to the courts to answer the question: Who gets to regulate fracking? Until fairly recently, both the litigation and its concomitant scholarship focused on the concept of preemption. State courts have been tasked with defining what kind of relationship their state has with its local governments and the bounds by which that relationship is confined. Some have ruled in favor of total state preemption, striking down any local bans or regulations deemed more stringent than their statewide counterparts. However, in Robinson Township v. Commonwealth, the Pennsylvania Supreme Court became the first to overturn key provisions of a state regulatory regime that claimed to preempt previously enacted local fracking bans. The court‘s decision was not based on arguments of preemption, but instead focused on the environmental rights afforded to Pennsylvania‘s citizens through the state constitution; the statewide uniform regulatory regime violated those rights and potentially placed the burdens of the industry on some communities far more than others.