Bans, moratoriums, and votes relating to hydraulic fracturing

Each state has legitimate interests in the orderly development of their oil and gas resources and generally regulates all oil and gas activities through a state agency which implements state laws. Counties and municipalities have also taken interest in the development of oil and gas resources within their boundaries by enacting local ordinances ranging from set-back requirements to temporary moratoriums or permanent bans on hydraulic fracturing. Proposals for temporary moratoriums and bans have been voted on in local elections.

For example, Vermont decided to ban hydraulic fracturing on May 16, 2012. In November 2013, four cities in Colorado (Boulder, Fort Collins, Lafayette, and Broomfield) either extended moratoriums on hydraulic fracturing or banned it completely. In Ohio, the city of Oberlin voted to ban hydraulic fracturing while citizens of Youngstown and Bowling Green rejected proposed bans.

Recent events concerning moratoriums, bans and votes include:

• On February 28, 2014, Los Angeles city council voted to draft regulations that would ban fracking, acid stimulation, and the use of waste disposal wells within the city, until they are assured that these activities do not pose a threat to residents’ health and safety. 
• The city of Carson, California imposed a 45-day emergency moratorium on all new drilling on March 19, 2014. This moratorium can be extended for two years to allow the city council to consider the potential effects associated with hydraulic fracturing.
• In Culver City, California, the city council is preparing an ordinance that would impose a moratorium on hydraulic fracturing and other unconventional well operations within the city.
• Brighton, Colorado enacted a four-month moratorium on all hydraulic fracturing permits in order to address local concerns. The city will begin processing permits again on July 15, 2014.
• On March 18, 2014, the voters in Johnson County, Illinois defeated a non-binding ballot measure that would have directed county commissioners to ban hydraulic fracturing within the county.
• An anti-fracking group in Denton, Texas announced that it has obtained the requisite number of signatures to have its proposal to ban hydraulic fracturing on the November 2014 ballot.

The legal status of municipal controls depends on what authority the state has and what is regulated in the local ordinances. Traditionally the authority to adopt zoning ordinances which regulate where an activity can take place has been delegated to the municipalities.

Lawsuits challenging local bans of oil and gas development on the basis that they interfere with state regulatory authority are winding their way through a number of state courts. Lawsuits in New York, Pennsylvania and West Virginia concerning local bans or restrictions on hydraulic fracturing have resulted in differing results – with some municipal ordinance being upheld while others are rejected. For a detailed review of these cases, see Barclay Nicholson and Steven Dillard, Analysis of Litigation Involving Shale Gas and Hydraulic Fracturing, found at www.frackingblog.com.

---

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.