May 29, 2015
by Josh Galperin, Associate Director
Texas Governor Greg Abbott recently signed a law that prohibits local governments from banning hydraulic fracturing within their borders. The new law also limits the ability of local governments to regulate other aspects of fracking, such as drilling location. This new policy is not a complete surprise. In fall 2014, voters in Denton, Texas approved a city-wide ban on hydraulic fracturing. The first such ban in Texas, it caused a storm of criticism and new attention to the role of local governments in managing fracking.
While not surprising, the newly enacted state-wide ban on bans is a major departure from Texas tradition.For over a century Texas has been a strong home-rule state and through its history of oil and gas exploration and extraction, Texas has given its local jurisdictions broad authority to manage the local impacts of industries operating within their borders.
There are many factors at play in the new Texas law, questions of home rule, economic interests, energy independence, and more, but one thing is clear: When municipalities like Denton decide to ban fracking they put themselves on the radar of state legislatures that may have other ideas and, therefore, towns may ultimately undermine their own authority.
I have been collaborating with colleagues at Pace Law School’s Land Use Law Center on a project to address this very paradox. The problem is that there are uniquely local impacts from hydraulic fracturing. While the federal government and state governments effectively govern certain aspects of hydraulic fracturing, other aspects — such as road use, visual blight, strain on local government services, and preservation of recreational space — are left ungoverned without local involvement. In other words, without active local governments, there is a fracking governance gap. Local jurisdictions may decide to do nothing, they may decide to establish a robust set of measures to address fracking, or they may ban the process all together. We argue that local governments should take the middle road, developing strong regulatory and non-regulatory programs, rather than instituting full bans. Bans are unsustainable because they encourage state governments to withdraw local authority, thereby creating an even larger governance gap than originally existed. This is exactly what happened in Texas.
We will soon release a series of case studies demonstrating how local governments can effectively manage fracking (one case study comes from the city of Arlington, Texas and it will be interesting to see if the new Texas law impacts Arlington’s successful programs). We are also developing an interactive website that will allow users to explore the various impacts that local governments might address as well as examples of methods for addressing those impacts. A report will accompany the website. In the meantime, you can review our white paper here. This paper outlines the issues surrounding local fracking governance and offers a preliminary assessment of strong local measures that are both politically and legally defensible.