One of the most highly debated issues during the November election was the question of whether localities have the authority to enact fracking bans. Several cities throughout the country have attempted to enact prohibitions against hydraulic fracturing with varying degrees of success. Denton, Texas has become one of the latest cities to consider such a ban.
On November 4th, Denton residents voted on whether the city should enact a ban against hydraulic fracturing within the city limits. The measure passed with 59 percent of Denton residents voting in favor of the measure and 41 percent voting against it. The Denton City Council considered the measure initially; however, rather than enact the ban itself, the Council opted to place the ban on the ballot for the November elections. Denton currently has a moratorium in place banning drilling until January 20, 2015.
Several cities in California and Ohio also attempted to pass local bans against hydraulic fracturing. Specifically, fracking bans were on the ballot in the following localities: Santa Barbara County, California; San Benito County, California; Mendocino County, California; Athens County, Ohio; Gates Mills, Ohio; Kent, Ohio; and Youngstown, Ohio. Most of the proposed fracking bans were defeated. The majority of voters in San Benito County and Mendocino County voted in favor of the ban, but the anti-fracking measure was defeated in Santa Barbara. The anti-fracking measure was defeated in Gates Mills, Kent, and Youngstown, but voters in Athens County approved the fracking ban.
Multiple cities have already enacted prohibitions against hydraulic fracturing. Five cities in Colorado have passed ordinances prohibiting fracking, and several cities in California also have fracking bans. In addition, similar legislation exists in localities throughout New York, Hawaii, New Jersey, and New Mexico. Some cities have taken the alternative approach of enacting temporary prohibitions against hydraulic fracturing. Other cities in Texas may also follow Denton’s example. Anti-fracking groups in Alpine, Texas are attempting to garner support for a city ban on hydraulic fracturing.
Courts throughout the country have disagreed on whether localities can enact ordinances barring hydraulic fracturing. Whereas some courts have invalidated local fracking bans, other courts have upheld such local laws. Currently, there are legal challenges to similar local bans pending in California, New Mexico, and Ohio. Indeed, several landowners have already filed suit against Denton to challenge the city’s moratorium on drilling. Moreover, the day after the election, the Texas Oil and Gas Association filed a motion to stop the enforcement of the fracking ban. Although the law is not yet settled on the validity of local fracking bans, one thing is certain—the Denton ban will serve as precedent for other Texas cities considering fracking bans.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Showing posts with label New Jersey. Show all posts
Showing posts with label New Jersey. Show all posts
Highland Park New Jersey bans hydraulic fracturing
On September 17, 2013, the governing council of Highland Park, New Jersey, a borough of nearly 14,000 citizens, passed the first local ordinance in the state that bans hydraulic fracturing within its borders. This ordinance was passed even though there has been no natural gas drilling or hydraulic fracturing within the borough or, for that matter in New Jersey.
The ordinance sets out concerns about the fluids and chemicals used in fracking causing adverse health effects and environmental impacts, that these chemicals contain radioactive elements and other toxic components, and that “there have been more than 1,000 documented cases of water contamination near fracking sites.”
According to a council member, “the intent is to have other municipalities follow suit” and ban hydraulic fracturing municipality by municipality since the state legislature has not been able to pass laws regulating the process.
The municipality of New Brunswick has already taken up the call. A proposed ban on hydraulic fracturing has been read in council and will be discussed at a public hearing in New Brunswick on October 2, 2013.
In January 2012, Governor Chris Christie vetoed a ban on hydraulic fracturing within the state, opting to sign a one-year moratorium. Efforts to renew the moratorium which expired in January 2013 have failed.
Moreover, in a separate veto, Gov. Christie refused to sign legislation that would ban treatment and disposal of fracking wastes in New Jersey, claiming that it would not withstand legal review under the U.S. Constitution’s dormant commerce clause.
This veto has not yet been overturned. The Governor pointed to the “undisputed fact” that fracking is not occurring and is unlikely to occur in the state even though the U.S. Geological Survey has identified some gas resources in the South Newark Basin (located in New Jersey and eastern Pennsylvania).
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
The ordinance sets out concerns about the fluids and chemicals used in fracking causing adverse health effects and environmental impacts, that these chemicals contain radioactive elements and other toxic components, and that “there have been more than 1,000 documented cases of water contamination near fracking sites.”
According to a council member, “the intent is to have other municipalities follow suit” and ban hydraulic fracturing municipality by municipality since the state legislature has not been able to pass laws regulating the process.
The municipality of New Brunswick has already taken up the call. A proposed ban on hydraulic fracturing has been read in council and will be discussed at a public hearing in New Brunswick on October 2, 2013.
In January 2012, Governor Chris Christie vetoed a ban on hydraulic fracturing within the state, opting to sign a one-year moratorium. Efforts to renew the moratorium which expired in January 2013 have failed.
Moreover, in a separate veto, Gov. Christie refused to sign legislation that would ban treatment and disposal of fracking wastes in New Jersey, claiming that it would not withstand legal review under the U.S. Constitution’s dormant commerce clause.
This veto has not yet been overturned. The Governor pointed to the “undisputed fact” that fracking is not occurring and is unlikely to occur in the state even though the U.S. Geological Survey has identified some gas resources in the South Newark Basin (located in New Jersey and eastern Pennsylvania).
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
New Jersey Assembly Moves Along Fracking Ban Bill
On Monday, February 11, 2013, the New Jersey General Assembly advanced a bill that would permanently ban hydraulic fracturing in New Jersey. Bill A-567 advanced from the solid waste committee and will be sent to the general assembly for a vote.
While bill sponsor Connie Wagner, D-Bergen praised the bill as a response to “man-made disruption to the environment,” opponents of the bill worry that a ban on fracking discourages business and innovation in New Jersey.
This article was prepared by Barclay Nicholson (bnicholson@fulbright.com or 713 651 3662) fromFulbright's Litigation Practice Group.
While bill sponsor Connie Wagner, D-Bergen praised the bill as a response to “man-made disruption to the environment,” opponents of the bill worry that a ban on fracking discourages business and innovation in New Jersey.
Sara Bluhm of the New Jersey Business & Industry association questioned whether the Bill would discourage companies from creating jobs in New Jersey.
The Bill’s proposed text states that “the practice of the drilling technique of hydraulic fracturing . . . has been found to use a variety of contaminating chemicals and materials that can suddenly and in an uncontrolled manner be introduced into the surface waters and ground water of the State.” Similar legislation was passed in 2011 but was vetoed by Governor Chris Christie. Christie initially placed a one-year moratorium on hydraulic fracturing to await the results of the EPA’s fracking study. That moratorium expired in January of this year.
The Bill’s proposed text states that “the practice of the drilling technique of hydraulic fracturing . . . has been found to use a variety of contaminating chemicals and materials that can suddenly and in an uncontrolled manner be introduced into the surface waters and ground water of the State.” Similar legislation was passed in 2011 but was vetoed by Governor Chris Christie. Christie initially placed a one-year moratorium on hydraulic fracturing to await the results of the EPA’s fracking study. That moratorium expired in January of this year.
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