Agenda - Planning Commission - 11/03/2016

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r Recent Developments in Regutating Fracking Activitiesr BySorelf E. Negro Gas drilling underwent a boom starting in the mid-2000s in many communities, fueled by hydraulic fracturing. t Hydraulic fracturing,or fracking, y g, g,is a process ments may also be able to regulate hours of residents of Mora County gettheir drinking of oil and natural gas extraction that injects operation,noise levels,and lighting impacts water from wells,and their groundwater is a mix of water,sand,and chemicals at high from(racking activities,just as they could noticeably limited(Cart 2013).Thus,although r pressure underground to break up shale in impose such conditions on other industrial Mora County is one of the most economically order to release and recover the oil and gas. activities. depressed counties in New Mexico,it was not A decade later,local governments are still Such measures are increasingly im- willing to risk impacts to its groundwater for learning important lessons about how best portant where drilling that used to occur in job opportunities(Matlock 2013).In 2015,this to regulate impacts from oil and gas develop- predominantly rural areas moves into more ban was ruled unconstitutional by a federal ment,how local authority is determined by the populated spaces.From setbacks to recycling district court in New Mexico.The court ruled state's regulatory approach to the industry, wastewater,from moratoriums and bans to that the ordinance was preempted by state and how best to reap the benefits of economic cooperative federalism,this article explores taw because it conflicted with state law,and it growth to plan for a community's future. recent developments in the regulation of im- violated the First Amendment of the U.S.Con- Although states primarily regulate the pacts from(racking activities on communities. stitution and the Supremacy Clause(SWEPI, V oil and gas industry,and although the scope LP v.Mora County,NM,81 F.Supp.3d 1075 of a local government's authority varies from FRACKING BANS:A RISKY APPROACH? (D.N.M.2015)). state to state,there is still often a substantial Some communities have banned(rack- The scope of local governments'author- amount that local governments can do to plan ing—and in some instances,bans have been ity to regulate and even ban fracking is also for oil and gas development and regulate the upheld,such as in New York—but generally the subject of debate in Colorado.On May 2, impacts of drilling operations in their com- speaking,ordinances that restrict fracking 2016,the Colorado Supreme Court issued its munities.For example,municipalities may activities rather than ban them are less likely highly anticipated decision and struck down have the authority to require setbacks for well to be subject to challenge.In 2013,Mora the Longmont's voter-approved ban on frack- pads and other fracking activities—including County,New Mexico,became the first county ing,as well as the Fort Collins's moratorium on ` setbacks from residential properties,schools, in the United States to ban fracking out of fracking,which voters approved in 2013(City I: water resources,and parklands.Local govern- concern for its water resources.All 5,000 of Longmont v.Coto.Oil&Gas Ass'n,Case No. 15SC667(Colo.Sup.Ct.May 2,2o16)). Voters in Longmont added the ban to the city's charter in 2012.It was challenged by the r Colorado Oil and Gas Association,which ar- gued that the local government's ban is pre- . empted by the state's interest in and authori- zation of fracking.COGA also challenged Fort Collins's moratorium on the same grounds. 4 The Colorado Supreme Court agreed that the fracking ban"is preempted by state law i P4{ and,therefore is invalid and unenforceable." The court explained that"the state's interest 6 s in the efficient and fair development of oil and gas resources in the state suggests that Long- - mont's fracking ban implicates a matter of a statewide concern."The court also found that the ban"could ultimately lead to a patchwork �? of regulations that would inhibit the efficient development of oil and gas resources"and it is I I E ZONINGPRACTICE io.16 AMERICAN PLANNING ASSOCIATION I page 2 C