dentify the advantages and disadvantages in the ways that the governments involved work together

CASE WESTERN RESERVE LAW REVIEW • VOLUME 63 • ISSUE 4 • 2013

H Y D R O F R A C K I N G :

STATE PREEMPTION, LOCAL POWER, AND COOPERATIVE GOVERNANCE

John R. Nolon^ & Steven E. Gavin^

ABSTRACT

Advocates for the gas drilling technology known as hydrauhc fracturing, or hydrofracking, argue that it will bring significant economic benefits to the private and public sectors. Its opponents dispute these claims and point to significant environmental and public health risks associated with hydrofracking—risks that must be considered in adopting government regulations needed to protect the pubhc interest. One of the many issues raised by hydrofracking is which level of goverrmient should regulate which aspects of the practice. This debate is comphcated by the fact that the risks associated with hydrofracking raise concerns of federal, state, and local importance and fit within existing regulatory regimes of each of these levels of goverrmient. This Article begins by describing the hmited aspects of hydrofracking that are currently regulated by the federal government, which leaves many of the risks unaddressed, opening the door for state and local regulation. This Article describes the legal tension between state and local governments in regulating hydrofracking in the four states that contain the immense MarceUus shale formation. Its particular focus is on court decisions that determine whether local land use regulation, which typically regulates local industrial activity, has been preempted by state statutes that historically regulate gas drilhng operations. This investigation suggests that the broad scope and durabihty of local land use power as a key feature of municipal governance tends to make courts reluctant to usurp local prerogatives in the absence of extraordi- narily clear and express language of preemption in state statutes that regulate gas drilling. The Article concludes with an examination of how the legitimate interests and legal authority of all three levels of goverrmient can be integrated in a system of cooperative governance.

t John R. Nolon is Professor of Law at Pace Law School and Counsel to the Land Use Law Center, and has been an adjunct professor at the Yale School of Forestry and Environmental Studies since 2001.

\ Steven E. Gavin is a student at Pace Law School and editor in chief of the Pace Environmental Law Review.

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CASE WESTERN RESERVE LAW REVIEW • VOLUME 63 • ISSUE 4 • 2013 Hydrofracking: State Preemption, Local Power, and Cooperative Governance

CONTENTS

INTRODUCTION: HVDROFRACKING RAISES JURISDICTIONAL ISSUES 996

L LIMITED SCOPE OF GURRENT FEDERAL REGULATIONS 1000

A. Safe Drinking Water Act 1002 B. Clean Water Act 1005 C. Clean Air Act 1006 D. Comprehensive Environmental Response, Compensation,

and Liability Act 1008 E. Resoxirce Conservation and Recovery Ad 1009 F. Endangered Species Act lOlO C. Toxic Substances Control Act 1012

IL NEW YORK: LOCALITIES WIN ROUND ONE, ESCAPINC PREEMPTION… 1013

in . PENNSYLVANIA: PREEMPTION THWARTED 1021

ÍV. WEST VIRCINIA AND OHIO; HYDROPRACKINC LAW IN LIMBO 1026

A. West Virginia Cas Regulation and Local Land Use Control 1026 B. Ohio 1031

V. GooPERATivE GOVERNANCE: STATE-LOCAL GOLLABORATION 1036

INTRODUCTION: HYDROFRACKING RAISES JURISDICTIONAL ISSUES

Hydraulic fracturing, or hydrofracking, is a gas well stimulation and extraction technique designed for ai’eas underlain by large shale formations foimd often a mile or more below the surface. Vertical hydrofracking has been done for decades, but relatively recent technology enables directional drilling, which allows the drill stem and borehole to follow the horizontal structure of the shale formations and proceed thousands of feet to exploit gas reserves fai- from the well head.’ In horizontal hydrofracking, millions of gallons of water ai’e pmnped at high pre&sure into the well bore—water that contains thousands of gallons of proprietary chemical shnrries and a propping agent, such as sand.^ The pressure creates fractures in the hychocaibon-

1. Marianne Levelle, Forcing Cas Out of Rock with Water, NAT’L GEOGRAPHIC DAILY NEWS (Oct. 17, 2010), http://news.nationalgeo graphic.com/news/2010/10/i01022-energy-marcellus-shale-gas-science-tec hnology-water.

2. Between one million and five million gallons, or more, of water are needed for a typical gas well in the Marcellus shale. MICHÈLE RODOERS ET AL., MARCELLUS SHALE: WHAT LOCAL GOVERNMENT OFFICIALS NEED TO KNOW 5 (2009), available at http://pubs.cas.psu.edu/ freepubs/pdfs/ua454.pdf. About 99.5% of this finid is composed of water and proppant (usually sifted sand) and about 0.5% consists of chemical additives. See GROUNDWATER PROT. GOUNCIL, MODERN SHALE GAS DEVELOPMENT IN THE UNITED STATES: A PRIMER 61-62 (2009), available at http://www.gwpc.org/sites/default/nies/Shale%20Gas%20 Primer%202009.pdf (noting that chemicals used include biocides, gels.

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