Unconventional oil and gas development is fundamentally changing the U.S. energy landscape, bringing both new challenges and new opportunities. Federal and state laws regulate some aspects of the shale oil and gas development life-cycle, but the pace and scale of shale plays in states from Pennsylvania to Texas to North Dakota risks a host of potential impacts at the local level – impacts that may fall through a governance gap without effective exercise of municipal land use and zoning authority.
Researchers at the Yale Center for Environmental Law & Policy and the Land Use Law Center at Pace Law School, with support from the Oscar M. Ruebhausen Fund at Yale Law School and the Yale Climate and Energy Institute, are leading an outreach, analysis, and guidance effort to help address this potential shale gas governance gap at the local level. As outlined in the team’s White Paper, outright bans on fracking risk state preemption, while uncontrolled drilling risks negative community and environmental impacts. The project team aims to support municipal leaders in developing sound, balanced, and effective local regulatory, non-regulatory, and planning practices to address the impacts of shale oil and gas development. With the proper tools, local authorities can effectively govern many aspects of fracking by better interfacing with state regulators and industry, or exercising local powers to mitigate land use impacts and environmental damage, while ensuring safeguards for net economic, social, and community benefits.
As part of this ongoing effort, the Yale and Pace team recently convened a facilitated discussion at Yale Law School with diverse stakeholders from industry, advocacy, government, and academia. Titled “Closing the Shale Gas Governance Gap,” the session in late March focused on local strategies and best practices for governing unconventional oil and gas development. The team’s research is turning up novel and notable examples of local regulation of fracking – overlay zones, parcel size restrictions, insurance requirements, and noise limits, to name just a few. We sought to enhance and expand our efforts through collaborative discussion with a group of experts from the field.
Professor Hannah Wiseman from Florida State University College of Law opened the discussion with an overview of current federal and state regulatory efforts, highlighting potential impacts and governance gaps at the local level. Participants then heard from three distinguished speakers with firsthand knowledge of local government attempts to address the impacts of fracking.
John Smith, Solicitor for Cecil Township in Pennsylvania and attorney for the municipalities in the recent Pennsylvania Supreme Court case Robinson Township v. Commonwealth, spoke of a wide range of local challenges in the communities he represents, from water use to road traffic, and silica dust to seismic testing. Attorney Smith also discussed unique strategies in Cecil Township, including local ordinances requiring sound walls around drill sites and advance notice of drilling.
Similarly, Terrence Welch, Partner at Brown & Hofmeister LLP, in Richardson, Texas, offered valuable perspective on crafting the Dallas local ordinance governing oil and gas development in an urban and suburban setting in the Barnett Shale region of north Texas. Public attention in the nearby suburb of Flower Mound focused heavily on the issue of setbacks, and local government experience there highlighted the importance of property value studies to justify those setbacks, as well as the need to anticipate variance claims, the threat of takings lawsuits, and issues unique to parkland.
Lastly, Stephen Ross, formerly the County Attorney for Santa Fe County, New Mexico, discussed Santa Fe’s recent gas development ordinance, providing unique insight into the county’s efforts to facilitate public participation, initiate a temporary moratorium, draft general plan amendments, and build a collaborative interaction with state government.