FRACKING ACROSS THE GLOBE: THE DEBATE IN THE UNITED STATES AND EUROPE AND THE ROLE OF FEDERAL, STATE, AND LOCAL REGULATIONS.
When facing the global energy needs of today, hydraulic fracturing (fracking), a method of natural gas extraction, has been controversial in the United States as well as in various countries in Europe. (1) While fracking proponents argue the economic benefits of fracking, many environmentalists object to the potential effects that fracking could have on water, air, and land. (2) In various states throughout the United States, fracking has delivered promising results along with environmental concerns. (3) Similarly, some European nations, such as the United
Kingdom and Poland, have experienced both the benefits and detriments of fracking. (4) Recent fracking development indicates that there are insufficient regulations in both the United States and Europe. (5)
This Note explains the regulatory framework in the United States, the United Kingdom, and Poland. (6) It further explores the regulatory gaps in various states within the United States as well as the regulatory framework in European nations. (7) Part II will discuss the history of fracking, explaining how it emerged in each nation. (8) Part III will show the flaws in the current regulations in the United States, the United Kingdom, and Poland. (9) Part IV will analyze the best approaches going forward--including collaborative laws at the local, national, and international level. (10) Lastly, Part V will conclude with emphasizing the gaps in fracking regulations and the need for more effective laws in the United States and Europe. (11)
A. The United States
1. Fracking Origins in the United States
Drilling for natural gas has been a common practice in the United States for over a century. (12) Although fracking has been used since the 1940s, it was mainly done in conventional vertical oil and gas wells. (13) In the 1990s, an improvement in technology allowed for fracking to be utilized in unconventional horizontal drilling. (14) Natural gas trapped within shale formations is difficult to extract, and it is necessary to use fracking technology to capture the gas. (15) Advancements in technology made accessible natural gas that was previously impossible to extract. (16)
2. Federal Environmental Laws in the United States
In the late 1900s, Congress passed environmental protection legislation. (17) This included the creation of the EPA in 1970. (18) The EPA is an executive agency responsible for enforcing federal environmental laws. (19) The Clean Air Act, passed in 1970, regulates air emissions and authorizes the EPA to establish National Air Quality Standards. (20) Two years later, in 1972, Congress enacted the Clean Water Act, which regulates the discharge of pollutants into U.S. waters and creates quality standards for surface waters. (21) The Safe Drinking Water Act (SDWA), passed in 1974, protects drinking water quality in the United States in both above ground and underground sources. (22) Continuing this trend of environmental law making, in 1980, the Comprehensive Environmental Response, Compensation, and Liability Act (CERLCA) established the Federal Superfund that is used to clean up abandoned hazardous waste sites; CERLCA also applies to accidents, spills, and other environmental emergencies. (23) In 1999, Congress passed the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, which pertains to flammable fluids and "public access to off-site consequence analysis data." (24) During the George W. Bush administration, the Energy Act of 2005 was passed; this Act exempted fluids used in fracking that were otherwise regulated under the Clean Air Act, Clean Water Act, Safe Drinking
Water Act, and CERCLA. (25) In 2007, President Bush signed the Energy Independence and Security Act (EISA), which had the goal of improving the energy performance of the federal government and moving the United States towards stronger energy security. (26) During these decades of environmental lawmaking, no federal laws have been created that directly regulate fracking. (27)
3. State Environmental Regulations
a. Local Moratoria and Bans in Colorado
Since local governments traditionally have land use and zoning powers, many municipalities have taken local measures in attempt to regulate fracking. (28) In 2012, the City of Longmont, Colorado voted to prohibit fracking within their jurisdiction. (29) A year later, four other communities in Colorado, namely, Boulder, Broomfield, Lafayette, and Fort Collins, approved fracking bans in their towns. (30) In response to these regulations, gas industry groups sued the municipalities on the grounds that the state has implied preemption. (31)
b. Local Fracking Bans in New York State
In 2011, several municipalities in New York State took local action to either temporarily or permanently ban fracking within their jurisdiction. (32) New York sits atop the Marcellus Shale, a natural gas formation that spans from the Catskill Mountains in New York through Pennsylvania, Ohio, and West Virginia. (33) The Towns of Dryden, NY and Middlefield, NY prohibited fracking through their home-rule municipality zoning powers. (34) Consequently, gas companies owning land in both towns brought lawsuits seeks to get the local ordinances overturned. (35)
B. Fracking in Europe
Similar to the goals of the United States, the European Union (E.U.) also aims to be energy independent. (36) Due to unreliable relations with Russia, a large oil and natural gas supplier, it is desirable for the European Union to establish energy security. (37) Therefore, when fracking technology became a feasible means of extracting natural gas, many European nations were eager to exploit their resources. (38) Poland, for example, has one of the largest shale reserves in Europe and was largely supportive of fracking and eager to begin. (39) Beyond energy security, the economic benefits of fracking were particularly appealing. (40)
On the other hand, many European nations--such as France and Bulgaria--were threatened by the concept of fracking and almost immediately enacted moratoria on fracking in their countries. (41) Looking at the United States as a model, these nations feared detrimental environmental impacts, such as the amount of water needed for fracking and the subsequent management of the toxic wastewater after a well is fracked. (42) Other environmental concerns, such as air and land pollution, were also contested in the fracking debate. (43)
1. Fracking Origins in the United Kingdom
Natural gas production has strong roots in the United Kingdom. (44) After the 1979 oil crisis, the United Kingdom began to domestically produce oil and gas. (45) In 2011, however, fracking operations in the United Kingdom were halted due to an earthquake. (46) Although one British energy firm agreed that the earth tremors were most likely due to fracking in the area, they argued that it was a rare instance and "unlikely to occur again." (47) British Prime Minister David Cameron promoted fracking for its potential to create jobs and stabilize Britain's economy. (48) Since 1970, the United Kingdom's natural gas production has fluctuated, mostly decreasing overtime, whereas imports have grown substantially. (49)
2. Fracking Origins in Poland
During European natural gas exploration, companies discovered that Poland possesses one of the largest shale reserves in all of Europe. (50) The abundance of natural gas made Poland a very desirable location for fracking. (51) When first discovered in 2012, the Polish Geological Institute estimated that Poland had between 346 and 768 billion cubic meters of shale gas onshore that could be recovered via fracking. (52) Politically, this excited Polish leaders, since Poland would like to sever their reliance on Russia for natural gas. (53) Poland, which was suffering economically during the time fracking in Europe became feasible, was eager to profit from exploiting their resources. (54)
A. The United States
1. Modern Federal Landscape in the United States
Fracking is still being debated throughout the United States. (55) Although there has not been any new federal legislation enacted, there is currently a bill in Congress to repeal the Energy Policy Act of 2005. (56) The FRAC Act, first introduced in 2011, would reverse the exemption that fracking currently has under the Energy Policy Act of 2005. (57) If passed, the FRAC Act would require companies to disclose chemicals and obey the Safe Drinking Water Act. (58) In 2015, the Obama Administration passed a regulation requiring companies to disclose the chemicals used during the fracking process, but this regulation was struck down in the federal courts and is likely to be undone with a new executive in 2016. (59)
Trump has also expressed his ambitions to make the United States a leader in natural gas production, thus making the country independent from foreign sources. (63)
2. Modem State Regulatory Practices
a. State Preemption in Colorado
In May 2016, the Supreme Court of Colorado decided two landmark fracking cases, both concerning the local regulation of fracking and state preemption. (64) In the first case, City of Fort Collins v. Colorado Oil & Gas Association, (65) the Colorado Supreme Court held that although the Oil and Gas Conservation Act (Act) did not impliedly preempt a locality's authority to enact land use regulations applicable to oil and gas operations, there was an operational conflict between Fort Collins's moratorium and the Act. (66) The city's moratorium banned all fracking within its jurisdiction for five years, which in practice "renders the state's statutory and regulatory scheme superfluous." (67) The Act articulates the state's strong interest in oil and gas development, delegating this task to the Colorado Oil and Gas Conservation Commission. (68)
In the second case, City of Longmont v. Colorado Oil and Gas Association, (69) the Colorado Supreme Court held that the Colorado Oil and Gas Conservation Act also preempted Longmont's ordinance banning fracking. (70) Echoing the holding in City of Fort Collins, the Act did not expressly preempt Longmont's amendment, Article XVI; the court found operational conflict between the local amendment and the state law. (71) Although the court determined that fracking is "a matter of [both] state and local concern" and recognized the locality's traditional power of land use, it ultimately decided the state's interest in promoting oil and gas development by ensuring uniform statewide regulations outweighed Longmont's interests. (72)
b. State Preemption in New York
In 2014, the Court of Appeals, New York's highest court, upheld both Dryden and Middlefield's zoning bans on fracking. (73) Months later in December 2014, Governor Andrew Cuomo banned fracking statewide, thus eliminating the preemption debate. (74) According to the Cuomo administration, fracking posed too many risks to land, air, and water. (75) New York State was the first state with available natural gas deposits to entirely ban fracking. (76) Although New York environmentalists were pleased with this decision, many other citizens were outraged by this outright ban because it hindered any possible economic developments from fracking. (77)
3. Modern Day Fracking in Europe
a. European Union General Scheme
The European Union plays an important role today in both environmental and energy policy, however, there are no binding E.U. regulations aimed specifically at fracking. (78) For example, there are recommendations relating to safety and suggesting baseline reporting. (79) In addition, many E.U. treaties are aimed to address issues that impact the E.U.'s energy security. (80) The energy debate in the European Union is complicated and touches upon a multitude of political issues including foreign policy, international trade, economics, and other security issues. (81)
b. United Kingdom
Differing from the United States, the United Kingdom does not have a codified Constitution. (82) Acts of Parliament have given local authorities the power to promote economic, social, and environmental wellbeing of their region. (83) These acts have given local government a role to play in the fracking regulatory process. (84) Gas companies wishing to frack must apply for a Petroleum Exploration and Development License through the national Department of Energy and Climate Change. (85) Additionally, the respective environmental agency in each country in the United Kingdom is responsible for issuing an environmental permit when chemical fracking fluids are being used at a site. (86)
Further supporting the importance of local government regulation in the United Kingdom, local planning authorities require companies to obtain a permit. (87) Localities in the United Kingdom can also set standards on noise, local air quality, and ground pollution. (88) Regardless of local government authority, the Infrastructure Act 2015 implemented new rules promoting the exploration and production of shale gas; this national act was met with protesting from localities who wished to ban fracking. (89) Ultimately, there is a clash between local and national interests when it comes to fracking in the United Kingdom. (90)
Under the country's new Prime Minister, Theresa May, it is anticipated that fracking may be increased in the United Kingdom. (91) Recently, despite local objections, the moratorium on fracking was lifted when a new fracking operation was approved. (92) Fracking development in the United Kingdom is still years away due to regulatory challenges, and environmental protesting is unlikely to disappear. (93) Environmental groups have maintained an active presence in the United Kingdom on the topic of fracking. (94)
Although there were initially high hopes for fracking in Poland, these dreams have largely diminished. (95) Since drilling in Poland commenced, the results have been disappointing. (96) This is partially due to Poland's extremely slow administration and regulatory delays; gas companies report it takes approximately seven months to obtain a drilling permit, six months to amend, and an additional nine months to receive an environmental decision. (97) Additionally, the test wells that have been drilled in Poland have been unsuccessful, both physically and politically. (98)
Local protesting by Polish citizens has also posed a threat to natural gas companies attempting to frack in the country. (99) Ultimately, Poland remains reliant on Russia for natural gas, and this is not anticipated to change any time in the near future. (100)
A. United States Contemporary Views
1. More Comprehensive Federal Laws Needed to Regulate Fracking
Given the lack of sufficient federal regulations applicable to fracking, it seems that Congress, as well as the EPA, should implement further law and standards to regulate fracking; baseline standards for the natural gas industry are needed at the very least to protect the environment, and EPA studies on potential environmental threats posed by fracking would also be helpful. (101) Particularly on the issue of chemicals injections during the fracking process, the federal government should be setting at least some minimal standards as a floor for regulations. (102) Additionally, states can implement more stringent bans so long as they are not subject to preemption. (103) With a cooperative federalism approach, fracking can be successfully regulated on both the state and federal level of government. (104)
2. Repeal of the 2005 Energy Policy Act
Since the Energy Policy Act of 2005 was designed specifically to exempt the natural gas industry from environmental laws, it should be repealed in order to hold fracking companies responsible; currently, these natural gas companies are escaping important environmental statutes that would otherwise apply to them. (105) This compromises our environmental integrity and undermines laws meant to protect the environment. (106) Assuming the Energy Policy Act of 2005 was repealed, which would be done with the implementation of the FRAC act, the EPA would be able to successfully regulate fracking underground injections via the Safe Drinking Water Act. (107) This would address the environmental concern of water contamination during the fracking process. (108)
3. More State Uniformity Needed Where Local Bans Have Been Enacted
Preemption is an important topic in the fracking conversation, because municipalities cannot effectively regulate if they are subject to state preemption, as demonstrated in Colorado. (109) Due to states' important interests of statewide uniformity, contradicting local regulations complicate the state's regulatory scheme. (110) In other states, like New York, it seems that local bans would continue to be upheld, even if the statewide fracking ban was lifted. (111) With the introduction of a new executive branch in 2017, it will be interesting to see President Trump's approach to fracking regulation, especially because he has come out in favor of allowing state and local regulations. (112)
B. United Kingdom Contemporary Views
Although the United Kingdom has policies in place that provide local government with the authority to regulate fracking, there still appears to be a tension between localities and the national government; this is problematic when trying to promote an effective cooperative government regulatory scheme. (113) An example of this tension is in the case of fracking in Lancashire. (114) This scenario, where the national government overruled a local decision on fracking, highlights the issue of which level of government should prevail on tracking. (115) Ultimately, citizens opposed to fracking will continue to protest until their voices are heard by the national government in the United Kingdom; this includes national environmental agencies responsible for regulating tracking. (116) The United Kingdom is tasked with striking a balance between maintaining traditional local government power while developing a feasible national framework. (117)
C. Poland Contemporary Views
Given the unforeseen circumstances halting fracking operations in Poland, a once promising future for natural gas development now seems grim, which is disappointing for those hoping to see economic gains from Polish natural gas production. (118) Even if the regulatory process were to lighten up on the fracking industry, scientific hurdles have made fracking in Poland currently economically unfeasible or physically impossible. (119) Although this may be good news for Polish citizens opposed to fracking, it is terrible news for government officials seeking to achieve energy independence from Russia. (120) Given recent advancements in pipelines, however, Poland may have other means to get natural gas from nations besides Russia. (121) Unfortunately, for fracking proponents, fracking for natural gas in Poland is no longer the hopeful prospect it once was, and therefore, the energy industry should shift their focus on other options, such as renewables and pipeline development. (122)
Fracking continues to be a controversial issue both in the United States and abroad. (123) The issues surrounding fracking are multifaceted, intertwining matters of economic development, environmental policy, and foreign relations. (124) National government oversight and local government concerns will continue to conflict in the realm of fracking regulation. (125) Energy policy and development is a topic that will become even more important in the future considering impending events such as the anticipated Brexit in the United Kingdom and the ongoing changes in the Trump administration. (126)
(1.) See U.S. Environmental Protection Agency, The Process of Hydraulic Fracturing, https://www.epa.gov/hydraulicfracturing/process-hydraulic-fracturing (describing fracking process including use of water and chemicals). The Environmental Protection Agency (EPA) is the primary federal agency tasked with regulating fracking. Id. The method currently being used is relatively new and uses large quantities of water. Id.
Fractures are created by pumping large quantities of fluids at high pressure down a wellbore and into the target rock formation. Hydraulic fracturing fluid commonly consists of water, proppant and chemical additives that open and enlarge fractures within the rock formation. These fractures can extend several hundred feet away from the wellbore. The proppants--sand, ceramic pellets or other small incompressible particles--hold open the newly created fractures.
Id. See also Arthur Nelson, Poland's shale gas revolution evaporates in face of environmental protests, The Guardian (Jan. 12, 2015) https://www.theguardian.com/ environment/2015/jan/12/polands-shale-gas- revolution-evaporates-in-face-of- environmental-protests (discussing anti-fracking protesting groups in Poland). Since its introduction in Poland, local citizens have met fracking with much opposition. Id.
(2.) See Stephen Kass, Countries Approach Fracking With Interest and Caution; INTERNATIONAL ENVIRONMENTAL LAW, New York Law Journal (Jan. 6, 2014) http://www.mondaq.com/unitedstates/x/284506/Climate+Change/Countries+Approach+Fracking+With+Interest+and+Caution (stating economic attractiveness and national security benefits of fracking). Fracking has been credited for reducing the United States' carbon intensity, because coal has largely been replaced with natural gas, which produces less greenhouse gas emissions. Id. However, several environmental groups--especially in the Northeast--have protested fracking due to its environmental threats such as water contamination and disposal of hazardous waste. Id.
(3.) See Earthjustice, Fracking Across the United States, available at http:// earthjustice.org/features/campaigns/fracking-across-the-united-states# (last visited Oct. 12, 2017) (demonstrating fracking related accidents on map). See also Richard Valdmanis, U.S. fracking boom added 725,000 jobs -study, Reuters (Nov. 6, 2015), available at https://www.reuters.com/article/usa-fracking-employment-study/u-s-fracking-boom-added-725000-jobs-study- idUSL8Nl 3159X20151106 (reporting on study showing economic benefits of fracking). According to a study conducted by the National Bureau of Economic Research, fracking added approximately 750,000 nationwide between 2005 and 2012. Id.
(4.) See Mason Inman, Can Fracking Power Europe?, Nature (Mar. 6, 2016), http://www.nature.com/news/can-fracking-power-europe-l.19464 (discussing European nations fracking attempts and development). See also Justin P. Atkins, Note, Hydraulic Fracturing in Poland: A Regulatory Analysis, 12 Wash. U. Global Stud. L. Rev. 339, 340 (2013) (discussing fracking in Poland). Many Polish leaders see fracking as a way to improve economy. Id. at 341. See generally Dr. Rafael Leal-Areas & Andrew Filis, Essay, Conceptualizing EU Energy Security Through an EU Constitutional Law Perspective, 36 Fordham Int'l L.J. 1225 (2013) (discussing energy security in European Union). The majority of the EU's gas imports come from Russia. Id. at 1235.
(5.) See Joanna Hawkins, Fracking: Minding the Gaps, 17 E.L.R. 21 (2015) (arguing more fracking regulations are needed in Europe, and specifically in United Kingdom). Although there is a regulatory system in England that would govern fracking, there are many gaps in the regulations, especially in regards to the European Union. Id. Regulations are necessary to protect the public health and environmental interests of the United Kingdom. Id.
(6.) See infra Parts II-IV (explaining regulatory structure in United States, United Kingdom, and Poland further).
(7.) See infra Parts II-V (emphasizing regulatory gaps in United States, United Kingdom, and Poland).
(8.) See infra Part II (providing historical background of fracking in United States, United Kingdom, and Poland).
(9.) See infra Part III (highlighting flaws in current regulatory schemes in United States, United Kingdom, and Poland).
(10.) See infra Part IV (analyzing competing factors and interests in each country).
(11.) See infra Part V (concluding each country faces different regulatory issues).
(12.) A Brief History of Natural Gas, American Public Gas Association (last visited Oct. 12, 2017), available at http://www.apga.org/apgamainsite/aboutus/facts/history-of-natural-gas (providing historical context of natural gas industry in United States).
Naturally occurring natural gas was discovered and identified in America as early as 1626, when French explorers discovered natives igniting gases that were seeping into and around Lake Erie. In 1821, William Hart dug the first successful natural gas well in the United States in Fredonia, New York. Eventually, the Fredonia Gas Light Company was formed, becoming the first American natural gas distribution company.
Id. Since natural gas has been an important source of energy in the United Stated for so many years, there is a long history of the industry in the United States, especially in the Northeast. Id.
(13.) See Hydraulic Fracturing's History and Role In Energy Development, The Geological Society of America, https://www.geosociety.org/GSA/Science_Poli cy/CriticalJssues/hf/GSA/Policy/issues/hf/history.aspx (last visited Oct. 12, 2017) (providing historical background of fracking). Although many people view the current debate on fracking as addressing a new technique, fracking technology has been available for over seven decades. Id. Horizontal drilling, however, is a more recent technique that emerged in the 1990s. Id.
Hydraulic fracturing has been commercially applied since the 1940s (fig. 7). Over a million wells in the U.S. have been subjected to hydraulic fracturing, most of them conventional vertical oil and gas wells. Hydraulic fracturing became even more important in the 1990s, when improved technology allowed its application to horizontal wells in developing tight gas and oil reservoirs, particularly for shales. The technological combination of hydraulic fracturing, the chemistry of the fracturing fluid, and the use of horizontal wells is rapidly evolving.
(14.) See id. (discussing fracking in United States). The fracking debate is relatively new, becoming more controversial in recent years. Id. "In the past three decades, hydraulic fracturing has been increasingly used in formations that were known to be rich in natural gas that was locked so tightly in the rock that it was technologically and economically difficult to produce." Id. See U.S. Environmental Protection Agency, supra note 1.
Hydraulic fracturing is a technique used in "unconventional" gas production. "Unconventional" reservoirs can cost-effectively produce gas only by using a special stimulation technique, like hydraulic fracturing, or other special recovery process and technology. This is often because the gas is highly dispersed in the rock, rather than occurring in a concentrated underground location.
(15.) See supra notes 13-14 and accompanying text (describing fracking process). Natural gas previously inaccessible, such as shale formations, became extractable with the development of horizontal fracking in the 1990s. Id.
(16.) See id. (discussing fracking). Before current methods of fracking were available, trapped shale gas was either impossible or economically unfeasible to capture. Id.
(17.) See infra notes 18-25 and accompanying text (providing history of environmental legislation in United States). In the 1970s, there was much more federal environmental legislation passed by Congress. Id. This included the introduction of major federal acts, such as the Clean Air Act and Clean Water Act. Id.
(18.) See The Birth of EPA, U.S. Environmental Protection Agency, (Nov. 1985) available at https://archive.epa.gov/epa/aboutepa/birth-epa.html (explaining history of EPA).
Born in the wake of elevated concern about environmental pollution, EPA was established on December 2, 1970 to consolidate in one agency a variety of federal research, monitoring, standard-setting and enforcement activities to ensure environmental protection. Since its inception, EPA has been working for a cleaner, healthier environment for the American people.
(19.) See id. (providing information of the EPA's history). The EPA is an administrative agency in the executive branch responsible for enforcing environmental statutes. Id.
(20.) See 42 U.S.C. [section]7401 et seq. (1970) (discussing pollution prevention). See also U.S. Environmental Protection Agency, Summary of the Clean Air Act, available at https://www.epa.gov/laws-regulations/summary-clean-air-act (last visited Nov. 6, 2017) (summarizing Clean Air Act). The Clean Air Act is the largest statute governing air quality in the United States. Id. Each state has to develop its own air quality standards in order to maintain compliance with the Clean Air Act. Id.
(21.) See 33 U.S.C. [section]1251 et seq. (1972) (outlining water pollution prevention). See also U.S. Environmental Protection Agency, Summary of the Clean Water Act, available at https://www.epa.gov/laws-regulations/summary-clean-water-act (last visited Nov. 6, 2017) (explaining Clean Water Act). The Clean Water Act is the main federal statute that regulates water quality in the United States. Id. "Under the CWA, EPA has implemented pollution control programs such as setting wastewater standards for industry. We have also set water quality standards for all contaminants in surface waters." Id.
(22.) See 42 U.S.C. [section] 300(f) (1974) (defining SDWA). See also U.S. Environmental Protection Agency, Summary of the Safe Drinking Water Act, available at https://www.epa.gov/laws-regulations/summary-safe-drinking-water-act (last visited Oct. 24, 2017) (summarizing SDWA). The SDWA creates primarily health related standards for drinking water, and thus requires EPA to set minimum safety standards for tap water and public water systems. Id. States also regulate drinking water in order to ensure safety. Id. The EPA also regulates the injection of underground fluids, since this could potentially contaminate groundwater. Id.
(23.) See 42 U.S.C. [section] 9601 (1980) (defining CERCLA). See also U.S. Environmental Protection Agency, Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), available at https://www.epa .gov/laws-regulations/summary-comprehensive-environmental-response-compensation-and-liability-act (last visited Oct. 24, 2017) (summarizing CERLA). CERCLA was developed to clean up contaminated land and recover costs from potentially liable parties. Id. Mainly, the Act regulates hazardous waste that has greatly polluted the environment. Id.
(24.) See U.S. Environmental Protection Agency, Summary of the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, available at https:// www.epa.gov/laws-regulations/summary-chemical-safety-information-site-security and-fuels-regulatory-relief-act (last visited Oct. 24, 2017) (describing Act). The Office of Emergency Management is also involved in monitoring chemical accidents. Id.
(25.) See Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594, (2005) (describing Act). See also Ronald Tenpas & Chip Moldenhauer, Federal Regulation of Fracking: A Changing Landscape; Energy Law, The Legal Intelligencer, (July 31, 2012) (discussing Energy Policy Act of 2005). The Energy Policy Act of 2005 was an amendment to the Safe Drinking Water Act and exempted fracking activities "associated with the underground injection of fluids," with the exception of diesel fuels. Id. In 2009, Democratic members of Congress sought to repeal the Energy Policy Act of 2005 and launched an investigation into chemicals used by fracking companies. Id. The EPA also began a study in response to this controversy. Id. See also Timothy Cama, Clinton Wants to End 'Halliburton Loophole' on Fracking, Advisor Says, The Hill (July 27,2016), available at http://thehill.com/policy/energy-environment/289475clinton-wants-to-end-halliburton- loophole-on-fracking-adviser-says (discussing Presidential candidate Clinton's ambition to eliminate Halliburton loophole). The Energy Policy Act of 2005, referred to as the 'Halliburton loophole,' was an act of Congress that stripped the EPA of their ability to regulate fracking operations under the SDWA. Id. Specifically, the Halliburton loophole exempts hydraulic fracking from the SDWA's underground injection regulatory authority. Id. On the other hand, "the oil and natural gas industry disagrees strongly with the characterization of the 2005 law as a 'loophole,' and is seeking to protect it, arguing that EPA regulation would be duplicative and burdensome." Id.
(26.) See Summary of the Energy Independence and Security Act, U.S. Environ mental Protection Agency (Aug. 2, 2016), available at https://www.epa.gov/lawsregulations/summary-energy-independence- and-security-act (summarizing act). See also Petroleum & Other Liquids, Company Level Imports, U.S. Energy Information Administration (Sept. 2017), available at http://www.eia.gov/petroleum/imports/company level/ (supplying United States energy import statistics).
(27.) See David Spence, Federalism, Regulatory Lags, and the Political Economy of Energy Production, 161 U. PA. L. Rev. 431 (2013) (discussing potential federal regulation of fracking). In the fracking debate, many questions of federalism arise, one question being if fracking regulations should be left solely to the state. Id. at 435. Even when discussing federal regulations, the questions arises whether Congress should pass licensing requirements, or if the EPA should utilize their "regulatory authority to impose" rules on the fracking process. Id. Currently, there is "no comprehensive federal licensing regime" for fracking; it exists solely on the state level. Id at 447.
During the 1970s, Congress passed most of the major statutes that still regulate environmental health and safety, including: (1) the Clean Air Act (CAA) and the Clean Water Act (CWA), which required permits and compliance with federal standards for air and water emissions respectively; (2) major hazardous waste regulatory legislation, such as the Resource Conservation and Recovery Act (RCRA); and (3) public health and safety protection laws, such as the Safe Drinking Water Act (SDWA), which established federal drinking water protection standards, and the Occupational Safety and Health Act (OSH Act), which established health and safety standards for the workplace.... However, this federal regulatory superstructure does not always regulate environmental, health, and safety risks associated with fracking in the same way it regulates other industries.
Id. at 449.
(28.) See Sean McLernon, Federal Fracking Stalemate Keeps Regulatory Focus Local, Law 360 (Nov. 21, 2013), https://www.law360.com/energy/articles/490257/federalfracking-stalemate-keeps-regulatory- focus- (discussing local bans in Colorado). Generally speaking, land use is a local government power. Id. Therefore, there is an argument that federal government should not be tasked with deciding the fate of fracking in the United States. Id. "With several Colorado communities passing municipal fracking moratoriums, water scarcity raising concerns in several states, and ongoing research helping steer the direction of regulation across the country, the fate of fracking is being determined outside the halls of Congress." Id.
(29.) See id. (analyzing local bans on fracking). Longmont's ban was the first of its kind in Colorado and created a "domino effect" across the state. Id. Several other cities in Colorado passed ordinances regulating or banning fracking after Longmont. Id.
(30.) See id. (discussing fracking moratoria). The cities of Boulder, Broomfield, and Fort Collins passed 5-year moratoria (temporary bans), whereas Lafayette enacted a complete ban on fracking. Id. See also Colorado High Court Rules Local Fracking Bans Are Preempted By State Law, Lexis Legal News (May 3, 2016, 8:11 AM), http://www.lexislegalnews.com/articles/8039/colorado-high-court-rules-localfracking-bans-are-preempted-by-state- law (describing court's reasoning in Fort Collins and Longmont decisions).
The Supreme Court ruled that because fracking is a matter of mixed state and local concern, Fort Collins' fracking moratorium--as with the ban in the City of Longmont--is subject to preemption by state law. "Applying well-established preemption principles, we further conclude that Fort Collins's five-year moratorium on fracking and the storage of fracking waste operationally conflicts with the effectuation of state law."
Id. (quoting City of Fort Collins v. Colo. Oil & Gas Ass'n, 369 P.3d 586, 589 (Colo. 2016)).
(31.) See Colorado High Court Rules Local Fracking Bans Are Preempted by State Law, supra note 30 (recapping court's reasoning for overruling local bans). Although land use is primarily a local power, the state has an interest in promoting uniformity in the industry. Id. "Because Colorado has no express preemption of local oil and gas regulation, the courts will have to decide whether the state implied preemption of local rules by comprehensively regulating oil and gas activity." Id. Ultimately, the courts decided that the state of Colorado did intend to preempt local government in regards to fracking regulation. Id.
(32.) See Abigail Jones, No Preemption: Two Trial Courts Uphold New York Towns' Authority to Completely Ban Fracking Within Their Jurisdictions. Environ mental Law in New York, (Environmental Law in New York, New York, New York) (June 1, 2012) (discussing New York Court decision on fracking). The Town of Dryden in upstate New York amended their zoning ordinance to ban oil and gas production in their town in August 2011. Id. The Town of Middlefield, NY banned "heavy industry and all oil, gas or solution mining and drilling" through a zoning ordinance in June 2011. Id.
(33.) See id. (describing background of fracking in New York). The Marcellus Shale also spreads through the Delaware watershed, which provides drinking water to the New York City Metropolitan area. Id. This is a great cause of the controversy that fracking created throughout the state of New York. Id.
(34.) See id. (discussing home rule authority in New York). "Under Article IX of the New York State Constitution, local governments are vested with broad powers to enact local laws to protect the health, safety, and welfare of persons and property within their jurisdiction." Id. Since New York municipalities are Home Rule municipalities, they enjoy broad authority in creating land use regulations. Id.
(35.) See id. (providing information on New York fracking cases). Citing to Anshutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458 (2012), the natural gas company bringing suit challenging Dryden's local zoning ordinance on the ground that it was preempted by New York State's Oil, Gas, and Solutions Mining Law. Id. The Middlefield case, Cooperstown Holstein Corp. v. Town of Middlefield, N.Y.S.2d 722 (2012), also argued the ordinance was preempted. Id. Prior New York case law upheld local zoning ordinances, even when there was a statewide law addressing the same industry. Id.; see Matter of Frew Run Gravel Prods, v. Town of Carroll, 71 N.Y.2d 126 (1987) (holding Mined Land Reclamation Law did not preempt town's local zoning ordinance).
(36.) See Dr. Rafael Leal-Areas & Andrew Filis, Essay: Conceptualizing E.U. Energy Security Through an E.U. Constitutional Law Perspective (pt. I), 36 Fordham Int'l L.J. 1225 (2013) (describing energy and politics in European Union).
We conclude however that so long as the consecutive treaties that spell out E.U. competence upon which the E.U. lies are not substantively amended, the furthest the E.U. could go in relation to E.U. energy security is to act to the extent that the treaties make possible--that is to say, to the extent that the E.U. has powers to address some, albeit not all, key factors upon which energy security relies.
Id. at 1232. According to 2009 data, the European Union imported 34% of natural gas from Russia. Id. at 1235. Due to disputes between Russia and Ukraine, E.U. energy flow disruptions have negatively impacted E.U. energy security. Id. at 1292.
(37.) See id. at 1235 (providing information on E.U. energy policy). Behind Russia, Norway is the second largest natural gas supplier, providing 31% of gas to the European Union. Id. Other countries supplying gas to the European Union include Algeria, Qatar, and Libya. Id.
(38.) See Atkins, supra note 4, at 348 (discussing fracking in Poland). "Of the countries interested in expanding their hydraulic fracturing operations, Poland has been one of the most aggressive in seeking to develop its shale gas resources through the construction of new energy facilities." Id. An overwhelming majority of Polish people support the fracking movement. Id. at 349.
(39.) See id. (providing information on fracking in Poland). "Polish leaders are primarily concerned with achieving energy independence and moving away from other energy production methods that might have a much more detrimental effect on the environment than hydraulic fracturing." Id. at 349. Additionally, Poland would like to reduce their natural gas dependence on Russia. See also Fracking Heaven: Other Europeans Fear Fracking. Poland is Steaming Ahead, Economist (June 23, 2011), http://www.economist.com/node/18867861 (discussing fracking boom in Poland). Poland has more natural gas than France and Netherlands, both of which had banned fracking. Id.
(40.) See Atkins, supra note 4, at 341 (describing Poland economy and fracking). Although Poland's economy fared better than any other similarly sized country in Europe during the recession, Poland still faces its share of economic problems. Polish leaders have search extensively for ways to improve their country's economic situation. Many see hydraulic fracturing as a unique way to help solve many of the difficult problems Poland currently faces.
Id. at 341-42. Given the economic potential of natural gas production, many people are optimistic that fracking could create an economic boom in Poland. Id.
(41.) See Joanna Glowacki & Christoph Henkel, Note, Emerging Challenges to Good Governance in the Great Lakes: Hydraulic Fracturing: Hydraulic Fracturing in the European Union: Leveraging the U.S. Experience in Shale Gas Exploration and Production, 24 Ind. Int'l & Comp. L. Rev. 133, 135 (2014) (discussing shale gas revolution in United States and European Union). In addition to individual national bans, the European Parliament also suggested bans on fracking in environmentally sensitive areas, including drinking water areas. Id. at 180. In 2013, the European Parliament voted to require that fracking operations must be subject to mandatory environmental impact assessments. Id.
(42.) See id. at 139 (describing fracking process). Typically, two to four million gallons of water are required to drill and frack a horizontal well. Id. Some wells require even more; there can be up to eight wells on a single well pad. Id. Post fracking, a substantial amount of the water flows back out of the well. Id. This water contains chemicals and other harmful contaminants, and therefore is usually temporarily stored in pits and storage tanks until it is eventually reused or disposed elsewhere. Id. These tanks or pits can leak, further contaminating the ground. Id.
(43.) See id. at 142 (explaining chemicals used in fracking process). Volatile Organic Compounds (VOCs) result from fracking. Id. Methane and other hazardous air pollutants, such as benzene, ethylbenzene, and n-hexnae, have also been detected in the air in areas of natural gas development. Id. Trucks, pipelines, and leaks are some of the causes of such air pollution. Id. On land, soil pollution and increased seismic activity (such as earthquakes) are other environmental concerns. Id. Over the past ten years, chemically tainted soil from drilling waste has increased by approximately 5,000%. Id. "Research increasingly indicates a credible connection between wastewater injection activities and earthquakes, based on proximity and timing of the injection activities." Id. at 143.
(44.) See UKOOG, Onshore Extractions: History, United Kingdom Onshore Oil and Gas (2016), http://www.ukoog.org.uk/onshore-extraction/history (describing history of oil and gas industry in U.K.). Prior to World War I, the United Kingdom got almost all of their oil and gas supply from other nations. Id. Oil was found in Scotland in 1851, and gas was found in England in 1896, where a railroad was being constructed. Id.
(45.) See id. (providing history of United Kingdom). "In 1973, Wytch Farm Oilfield in Eastern Dorset was opened in an area of outstanding natural beauty and today it is the largest oilfield in Western Europe. At around the same time, it is believed the first hydraulic fracture in the [United Kingdom] was performed." Id. In 1973, the first well the United Kingdom was hydraulically fracked. Id.
(46.) See Chris Hilson, Framing Fracking: Which Frames are Heard in English Planning and Environmental Policy and Practice?, 22 J. Envtl. L. 177 (2015) (describing fracking debate in United Kingdom). Due to the earthquake in Lancashire, a temporary government moratorium was put on fracking operations until December 2013. Id. After this, protesting continued to ensue in the United Kingdom. Id.
(47.) See Fracking tests near Blackpool 'likely cause' of tremors, BBC (Nov. 2, 2011) available at http://www.bbc.com/news/uk-england-lancashire-15550458 (describing Lancashire earthquake).
It is "highly probable" that shale gas test drilling triggered earth tremors in Lancashire, a study has found. But the report, commissioned by energy firm Cuadrilla, also said the quakes were due to an "unusual combination of geology at the well site." It said conditions which caused the minor earthquakes were "unlikely to occur again."
(48.) See Inman, supra note 4 (articulating fracking arguments in Europe). Looking at the United States as an example, "Cameron hopes to replicate the surge in natural-gas production." Id. Fracking also has the potential to decrease the United Kingdom's (and other European nations) reliance on Russia for natural gas. Id. The fracking debate has included a strong emphasis on energy independence, as this is an important issue in foreign affairs. Id.
(49.) See id. (providing statistics). The "Looming Gas Crunch?" graph charts European natural gas production statistics. Id. For over four decades, the United Kingdom has been importing more gas than it has been producing domestically. Id. However, the potential of fracking in England could drastically change the import to domestic production ratio. Id.
(50.) See Atkins, supra note 4, at 348-49 (reporting amount of gas in Poland). Since Poland has natural gas that could potentially be extracted by fracking, Polish leaders are in favor of achieving energy independence from Russia. Id. Fracking is also less environmentally detrimental than some other forms of energy production Id. The economic benefits of fracking are also viewed favorably by many Polish citizens. Id.
(51.) See id. (discussing Poland's ambitions for energy independence due to large gas supply). Poland has relied on Russia for natural gas and would like to become an energy independent nation. Id. By fracking for natural gas domestically, Poland could potentially break their Russian reliance and become self-sufficient, and also be able to export natural gas. Id.
(52.) See Jo Harper, Polish Shale Hits the Rocks, Deutsche Welle (May 24, 2016), available at http://www.dw.com/en/polish-shale-hits-the-rocks/a-19279069 (describing shale gas reserves in Poland). "Poland is estimated to have between 350 billion and 780 billion cubic meters of shale gas under its surface, making it Europe's second largest potential producer after the UK." Id. Clearly, this is a sizeable amount that would boost Poland's economy if this natural gas could be extracted. Id. To date, fracking is the only feasible method to extract that gas. Id.
(53.) See id. (describing hopeful fracking potential in Poland). Since such a large amount of natural gas lies below Poland, there is potential for this gas to be extracted and create an economic boom for the nation. Id. Next to the United Kingdom, Poland has the second largest amount of natural gas reserves in Europe. Id.
(54.) See Atkins, supra note 4 and accompanying text (discussing EU energy policy statistics). Russia is currently the largest European supplier of natural gas in Europe. Id. If Poland were to extract natural gas via fracking, however, they could potentially become one of the largest natural gas suppliers in Europe, and possibly the world. Id.
(55.) See Cama, supra note 25 (discussing presidential candidates' stances on fracking). Although fracking has been a hot topic for years, it is still very much a modern debate. Id. During the 2016 presidential election, both candidates addressed energy and environmental concerns, including fracking. Id.
(56.) See S.785, 114th Cong. (2015-2016) "Fracturing Responsibility and Awareness of Chemicals Act" (FRAC Act) (amending SDWA). This bill is currently being reviewed by the Committee on Environment and Public Works. Id. The purpose of the bill is "to amend the Safe Drinking Water Act to repeal a certain exemption for hydraulic fracturing, and for other purposes." Id. It states:
Consistent with such regulations as the Administrator may prescribe, a State may seek primary enforcement responsibility for hydraulic fracturing operations for oil and natural gas without seeking to assume primary enforcement responsibility for other types of underground injection control wells, including underground injection control wells that inject brine or other fluids that are brought to the surface in connection with oil and natural gas production or any underground injection for the secondary or tertiary recovery of oil or natural gas.
Id. [section] 2. If passed, the FRAC act would subject the natural gas industry to environmental laws, such as the Clean Water Act, and Clean Air Act, and all other federal environmental regulations. Id. Currently, and for over a decade, the natural gas industry has not been subject to these environmental laws and regulations since the Energy Policy Act of 2005 has specifically exempt them. Id.
(57.) See id. (discussing FRAC Act). The bill also would require gas companies to disclose all chemicals used in fracking. Id. [section] 2(c)(4). Since natural gas companies are currently exempt from federal laws that require chemical reporting, their chemical usage in fracking is not being regulated on the federal level. Id. See also "S. 785-114th Congress: FRAC Act" available at https://www.govtrack.us/congress/bills/114/ s785 (last visited Oct. 19, 2016). The bill was first introduced to Congress in 2011, but failed in both the 112th and 113th sessions of Congress. Id. The bill is sponsored by a democratic Senator from Pennsylvania, Robert Casey Jr. Id.
(58.) See S. 785-114th Congress: FRAC Act, supra note 56 (discussing FRAC Act requirements). The FRAC Act would repeal the Energy Policy Act of 2005 and hold the natural gas industry accountable. Id.
(59.) See Alan Neuhauser, Obama Tightens Fracking Regs, Requires Chemical Disclosure, U.S. News & World Report (Mar. 15, 2015), available at https://www.usnews.com/news/articles/2015/03/20/obama-tightens- fracking-regs-requires-chemical- disclosure (describing new chemical regulations applicable to fracking). Through the Interior Department, the Obama administration required fracking companies to disclose the chemicals used during the fracking process. Id. "They are easily the strictest fracking standards developed by the federal government, which has largely left regulating the industry to individual states." Id. Environmental advocates were largely in favor of this law, however several Republican Congress members saw this regulation as just another barrier in the natural gas development process. Id.
"The combination of hydraulic fracturing and directional drilling is responsible for the unprecedented upswing in domestic oil and natural gas production during the past six years in the Lower 48," GOP Sen. Lisa Murkowski of Alaska, chairwoman of the Senate Committee on Energy and Natural Resources, said in a statement. "U.S. oil production has more than doubled--to 9 million barrels a day--since 2008, but that increase has occurred almost exclusively on state and private lands as companies have avoided federal areas because of permitting delays and other roadblocks."
Id. See also Camila Domonoske, Federal Judge Strikes Down Obama Administration's Fracking Rules, NPR (June 22, 2016), available at http://www.npr.org/sections/ thetwo-way/2016/06/22/483061014/federal-judge-strikes-down-obama-administrationsfracking-rules (reporting on federal case striking down Obama's chemical disclosure regulation). The judge in this case ruled that the Bureau of Land Management does not have the authority to regulate fracking on federal Indian lands. Id. The judge reasoned, "during the George W. Bush administration. Congress passed the Energy Policy Act of 2005 with bipartisan support." Id. "As Skavdahl notes, it 'expressly and unambiguously' excludes fracking from the list of oil and gas production processes that the EPA can regulate." Id.
(60.) See Mike Soraghan, Dems debate 'fracking ban,' but what does that mean?, E&E News (July 8, 2016), available at https://www.eenews.net/stories/1060039961 (describing what fracking ban would entail). During the 2016 Presidential election season, the Democratic Party advocated for fracking bans. Id. Senator Bernie Sanders, who was in the running for the Democratic Presidential nominee, stated, during the primary, that he opposed fracking. Id. Hillary Clinton, who went on to get the Democratic Presidential nomination, did not outright oppose fracking, but supported more regulations and state and local power to ban. Id. Additionally, Congress also has a role to play in regulating fracking. Id. "[J]ust because Congress hasn't gotten involved in onshore drilling doesn't mean it can't. Legal experts say oil and gas development is clearly interstate commerce, giving Congress the authority to weigh in." Id.
(61.) See Noah Bierman, Donald Trump promises to 'lift the restrictions on American energy' in appeal to fracking industry, Los Angeles Times (Sept. 22, 2016), http:/ /www.latimes.com/politics/la-fi-trump-fracking-20160922-snap-story.html (describing Trump's stance on fracking). During a speech in Pittsburgh, Pennsylvania, Trump accused Clinton of "wanting to kill the energy industry." Id. Although Trump supports fracking, he has also voiced his belief that voters on the state and local level should decide whether or not to allow fracking. Id. '"I am going to lift the restrictions on American energy and allow this wealth to pour into our communities--including right here in Pennsylvania,' Trump told shale industry leaders. 'The shale energy revolution will unleash massive wealth for American workers and families "' Id.
(62.) See id. (discussing Trump's vision for fracking industry). See also Christopher Helman, President Trump Will Make America's Energy Sector Great Again, Forbes (Nov. 9, 2016), https://www.forbes.com/sites/christopherhelman/2016/ll/09/president trump-will-make-americas-energy-sector-great-again/#70e0d8fl439f (describing potential energy policy under Trump administration).
With control of the White House and Congress, President Obama's coal-killing Clean Power Plan is likely history. The EPA will be declawed. The U.S. will not ratify the Paris climate accord. And there will be no chance of a federal carbon tax or cap-and-trade regime. That's good news for coal miners (like Foresight Energy, up 24% today) and owners of coal-fired power plants. Bad news for environmental zealots.
(63.) See Jennifer Jacobs & Jennifer A. Dlouhy, Trump Meets With Energy CEOs Discouraged by Fracking Remarks, Bloomberg (Oct. 4, 2016), https://www.bloomberg. com/news/articles/2016-10-04/trump-meets-with-energy-ceos-opposed-to-fracking-votes-he-backs (reporting Trump's meeting with energy executives). "In a statement after the meeting, Trump's campaign said he'd make the United States the 'world's dominant leader in energy production' and said he supports 'safe hydraulic fracturing' and 'energy production on federal lands in appropriate areas.'" Id. See also Trump Pence, An America First Energy Plan, https://www.whitehouse.gov/ america-first-energy (articulating campaign promises of Donald J. Trump). According to Trump's campaign website, his vision for energy in America is to make the country energy independent, create jobs, and protect clear air and clean water. Id. He also states that he wants to drill for natural gas on federal lands. Id.
(64.) See City of Fort Collins v. Colo. Oil & Gas Ass'n, 369 P.3d 586, 587 (Colo. 2016) (holding local ordinance preempted). City of Longmont v. Colo. Oil & Gas Ass'n, 369 P.3d 573, 574 (Colo. 2016) (finding state law preemption). See also Michael Wines, Colorado Court Strikes Down Local Bans on Fracking, N.Y Times (May 2, 2016), available at https://www.nytimes.com/2016/05/03/us/colorado-courtstrikes-down-local-bans-on- fracking.html?mcubz=0 (discussing recent Colorado Supreme Court decisions). "Officials of the Colorado Oil and Gas Association said the decisions go beyond prohibitions on oil and gas operations, preventing localities from imposing any rules on those operations that conflict with state laws and regulations." Id. Local environmental groups stated that this decision would push them to advocate for a statewide referendum (thus avoiding the issue of state preemption). Id. According to the President of Colorado's Oil and Gas Association, the state has some of the most stringent regulations in the country. Id. This "has led to a reduction in pollution from wells." Id.
(65.) See City of Fort Collins v. Colo. Oil & Gas Ass'n, 369 P.3d 573, 574 (Colo. 2016) (holding local law preempted).
(66.) See id. at 591 (setting out court's opinion).
A home-rule city's ordinance seeking to regulate fracking involves a matter of mixed state and local concern because it implicates the need for uniform statewide regulation and the extraterritorial impact of fracking ban, on the one hand, and the local government's traditional authority to exercise its zoning authority over land where oil and gas development occurs....
Id. An important issue for the court was balancing the local power to regulate on matters of land use with the state's goal of promoting uniformity. Id.
(67.) See id. at 593 (articulating court's reasoning). The court also stated that the State had a strong interest in creating uniform fracking regulations statewide. Id. Additionally, the court held that a five-year moratorium was too long of a time period to ban fracking. Id. "Applying well-established preemption principles, we further conclude that Fort Collins's five-year moratorium on fracking and the storage of fracking waste operationally conflicts with the effectuation of state law." Id. at 589. Ultimately, five years was too long to constitute a "temporary time-out." Id. at 595.
(68.) See id. at 592-93 (describing act). The Act states:
It is the intent and purpose of this article to permit each oil and gas pool in Colorado to produce up to its maximum efficient rate of production, subject to the prevention of waste, consistent with the protection of public health, safety, and welfare, including protection of the environment and wildlife resources, and subject further to the enforcement and protection of the coequal and correlative rights of the owners and producers of a common source of oil and gas, so that each common owner and producer may obtain a just and equitable share of production therefrom.
(69.) See 369 P.3d 586 (Colo 2016).
(70.) See id. at 590. In 2012, the citizens of Longmont, Colorado voted to amend their home-rule charter to prohibit fracking. Id.
(71.) See id. at 580. "[W]e likewise conclude that the state's interest in the efficient and fair development of oil and gas resources in the state suggests that Longmont's fracking ban implicates a matter of statewide concern." Id.
(72.) See id. at 581. "In sum, the need for uniform statewide regulation and the extraterritorial impact of a fracking ban favor the state's interest." Id.
(73.) See Kate Taylor & Thomas Kaplan, New York Towns Can Prohibit Fracking, State's Top Court Rules, N.Y. Times (June 30, 2014), (reporting New York's highest court's decision on local fracking bans).
The Dryden town supervisor, Mary Ann Sumne, said, "The oil and gas industry tried to bully us into backing down, but we took our fight all the way to New York's highest court." She added, "I hope our victory serves as an inspiration to people in Pennsylvania, Ohio, Texas, Colorado, New Mexico, Florida, North Carolina, California and elsewhere who are also trying to do what's right for their own communities.
Id. Unlike Colorado, the New York Court of Appeals did not find municipalities were preempted by state law in regards to fracking regulation. Id. Since municipalities in New York banned fracking by zoning, this action was upheld since zoning is primarily a local land use power. Id.
(74.) See Timothy Cama, New York Makes Fracking Ban Official, Hill (June 29, 2015), available at http://thehill.com/policy/energy-environment/246479-new-yorkmakes-fracking-ban-official (reporting fracking ban in New York State).
The Dryden town supervisor, Mary Ann Sumne, said, "The oil and gas industry tried to bully us into backing down, but we took our fight all the way to New York's highest court." She added, "I hope our victory serves as an inspiration to people in Pennsylvania, Ohio, Texas, Colorado, New Mexico, Florida, North Carolina, California and elsewhere who are also trying to do what's right for their own communities." Id. New York sets a strong example to the gas industry and provides other states with hope to successfully regulate or ban fracking. Id. Several towns in New York state demonstrated strong opposition to fracking. Id.
(75.) See Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in New York State, N. Y. Times (Dec. 17, 2014) (explaining Cuomo's fracking ban). After winning re-election, New York State Governor Andrew Cuomo decided to ban fracking in New York because of health concerns. Id. His reason was backed by the health commissioner of New York State. Id.
In a presentation at the cabinet meeting, the acting state health commissioner, Dr. Howard A. Zucker, said the examination had found "significant public health risks" associated with fracking. Holding up copies of scientific studies to animate his arguments, Dr. Zucker listed concerns about water contamination and air pollution, and said there was insufficient scientific evidence to affirm the safety of fracking.
Id. Since fracking is currently banned statewide in New York, municipal bans or moratoria are rendered irrelevant. Id.
(76.) See Cama, supra note 74 (describing fracking ban in New York). Although other states have banned fracking, New York is the first with significant natural gas resources to implement a ban. Id. The Marcellus Shale, running beneath New York State, contains high volumes of natural gas that could be accessed by fracking. Id.
(77.) See Scott Waldman, The impact of Cuomo's fracking ban, Politico (Jan. 5, 2015), available at http://www.politico.com/states/new-york/albany/story/2015/01/theimpact-of-cuomos-fracking-ban- 018675 (describing response in New York to Cuomo's fracking ban). Industry representatives and N.Y. citizens that support fracking began to challenge Cuomo's ban. Id.
Cuomo said at the announcement of the state's new fracking position that he expects a flood of lawsuits in response, and the Joint Landowners Coalition and the American Petroleum Institute are both laying groundwork for legal action. Yet absent what would be a surprising court victory, industry sources privately admit that their best hope for lifting the prohibition on fracking at this point will be for New York to elect a governor with a different position than Cuomo's.
Id. Fracking has become a political issue, especially on the state level. Id. Fracking proponents were outraged at the statewide ban, since many has been hoping to see capital gains by New York producing more gas via fracking. Id.
(78.) See Inman, supra note 4 (discussing energy security in European Union). See also Jonathan Verschuuren. Hydraulic Fracturing and Environmental Concerns: The Role of Local Government, 27 J Envtl. L. 431 (2015) (discussing European Union and United Kingdom governance over fracking). Similar to the United States, many European nations, such as the Netherlands and the United Kingdom, have local control over land use. Id. Local control is important in the fracking debate because it can affect whether or not a natural gas company can frack within a certain region. Id.
(79.) See id. (discussing European approach to fracking regulation). Baseline reporting of water, air, and seismicity are important for monitoring during fracking and assessing an incident. Id. Additionally, the European Commission has recommendations for capturing gas in the case of leaks. Id.
(80.) See Leal-Areas & Filis, supra note 4, at 1232 (conceptualizing European Union energy security). Energy independence is rare amongst European nations, and several, such as Poland, rely on Russia for natural gas. Id.
(81.) See id. at 1255 (discussing European energy policies).
Energy is multidimensional in that it cuts across several fields of policy, including foreign policy, international trade, human rights, security issues, and economics among others. This complicates matters, given that EU competences are uneven, depending on what is at issue. When we discuss energy within the context of the EU and its external relations with third-party states, a multiplicity of EU offices and institutions may be at play, namely, the EU Commissioner for Energy; the European Council's President; the High Representative--who is also a vice-president of the Commission--assisted by the EU External Action Service; and the Foreign Affairs Council--which is a sub-committee of the Council. Numerous provisions across the TEU and TFEU spell out their powers and duties.
(82.) See Verschuuren, supra note 78 (describing European system). Local government control over land use is common in European nations, including the United Kingdom. Id. This can include a local permitting process for natural gas extraction projects, such as fracking. Id.
(83.) See id. (illustrating applicable laws in United Kingdom). The Local Government Act 2000 and Localism Act 2011 have allotted localities these powers. Id. The first of these acts was an attempt to empower local communities. Id. In the second of these acts, "local authorities are granted powers in specific land use planning and environmental protection legislation, primarily aimed at town and country planning, for which local authorities have the primary responsibility, and noise and local air pollution and public health." Id.
(84.) See id. (discussing local government power in United Kingdom). The Acts were passed within the last two decades and give localities autonomy over land use and environmental concerns. Id. When it comes to fracking, these Acts will guide the local approach to regulating fracking. Id.
(85.) See id. (communicating permitting process in United Kingdom). This permit assesses environmental impacts generically, and the applicant must acknowledge a statement of environmental awareness. Id. Even more recent regulations fail to specifically "address the environmental issues associated with shale gas exploration and production." Id.
(86.) See id. (defining fracking regulations in United Kingdom). The use of chemicals in fracking fluid is a potential pollutant, and these permits deal "with two major environmental concerns of fracking: groundwater pollution and waste water management." Id.
(87.) See id. (explaining regulatory process in United Kingdom). "Local authorities are granted powers in specific land use planning and environmental protection legislation, primarily aimed at town and country planning, for which local authorities have the primary responsibility, and noise and local air pollution and public health " Id.
(88.) See id. (discussing local role in fracking development). This is an important for local governments in the United Kingdom; additionally, landowners play an important role in the fracking process since they ultimately negotiate compensation with the gas companies. Id.
(89.) See id. (explaining Infrastructure Act of 2005). "One of the elements of the Act is to extend the permit holder's right of use of deep level land enabling them to use land below 300m for petroleum exploration and extraction purposes, thus effectively diminishing landowners' rights to keep energy companies from their lands." Id.
(90.) See id. (describing fracking laws in United Kingdom). The Infrastructure Act led to "vehement local protests, including clashes with the police, seem to have had a negative impact on public opinion in regards to fracking." Id.
(91.) See Kelly Gilblom, Under May's New Government, a U.K. Gas Fracking Push Is Probable, Bloomberg (July 25, 2016) available at https://www.bloomberg.com/ news/ articles/2016-07-25/under-may-s-new-government-a-u-k-gas-fracking-push-is probable (discussing May's views on fracking). Previous Prime Minister David Cameron vehemently supported fracking in the United Kingdom, which is contrary to several other nations in the European Union, such as France, Germany, the Netherlands, Scotland, and Wales, all of which have either banned or suspended fracking. Id. With the proposed Brexit (the United Kingdom leaving the European Union), it may seem even more appealing to citizens of the United Kingdom to achieve energy independence; however, there will most likely still be public opposition to fracking and the potential environmental consequences. Id. Although the United Kingdom has a new Prime Minister (May), the government's policy on fracking has not drastically changed as compared to policies under Cameron. Id.
Greg Clark, now head of the newly formed department of Business, Energy and Industrial Strategy was in charge of fracking applications in his previous role as Secretary of State for Communities. He said he would take away the power of local county councils to make fracking decisions if they were unable to stick to agreed-upon timelines because shale gas development was a matter of national importance.
(92.) See Fracking in Lancashire given go-ahead by government, BBC (Oct. 6, 2016) available at http://www.bbc.com/news/uk-england-lancashire-37567866 (reporting fracking project approval). See also Andrew Follett, Britain Officially Opens Door To More Fracking, The Daily Caller (Nov. 15, 2016), available at http:// dailycaller.com/2016/11/15/britain-officially-opens-door-to-more-fracking/ (discussing recent fracking moratorium lift in United Kingdom). For the first time since 2011, a local council's ban on fracking operations was overruled. Id. However, environmental groups, such as Greenpeace and Friends of the Earth, are actively circulating petitions with hopes to stop fracking once again. Id. "The United Kingdom is one of the few countries in Europe in which fracking is legally permitted, but local governments had repeatedly declined to give fracking companies permits for years." Id. "The first fracking permits in Western Europe since 2011 were only issued in May." Id. Due to legal and regulatory barriers, large-scale development of fracking in the United Kingdom is still at least five years away. Id. The company behind this most recent approved project expects to begin drilling later in 2017. Id.
(93.) See Follett, supra note 92 (stating United Kingdom fracking development is still years away).
(94.) See Adam Vaughan, Hundreds expected to protest at Lancashire fracking site, The Guardian (Oct. 7, 2016) (reporting planned environmental protests against new fracking project). The protests are intended to send a message to investors and gas companies. Id. Lancashire residents oppose the national governments decision to overrule their local ban, stating that it is undermining local interests. Id. "Jennifer Mein, Leader of Lancashire county council, said that the government's actions appeared to go against the grain of the localism agenda it had promoted in recent years." Id. See also Emily Gosden, Opposition to fracking in the UK 'at record high,' The Telegraph (Oct. 13, 2016) (describing public statistics on fracking public opinion). According to research conducted at the University of Nottingham, opposition to fracking in the United Kingdom has reached a record high since the project in Lancashire has been approved. Id.
While the majority of those with a view still thought shale would be a cheap energy source and improve UK energy security, support for such views was waning. While the majority of those with a view still thought shale would be a cheap energy source and improve UK energy security, support for such views was waning.
(95.) See Arthur Nelsen, Polish shale industry collapsing as number of licenses nearly halves, The Guardian (Oct. 9, 2015) https://www.theguardian.com/environment/2015/oct/ 09/polish-shale-industry-collapsing-as-number-of-licenses-nearly halves (discussing collapse of Polish shale gas projects). Exploratory drilling is decreasing in Poland; this is at least partly related to extremely low global oil prices. Id. A company has also reported geological and technological problems, complicating fracking in Poland and increasing costs of the operation. Id. This is disappointing since "Poland was initially seen as a standard bearer for the 'shale gas revolution" in Europe." Id.
(96.) See J.C., Shale fait, The Economist (Nov. 14, 2014), available at http://www .economist.com/blogs/easternapproaches/2014/ll/polish-fracking (discussing failures of fracking operations in Poland).
"It's clearly developing below expectations," says Pawel Poprawa, an oil and gas expert at Poland's Energy Studies Institute, an advisory firm. Mr Poprawa puts much of the blame on a "slow and incompetent" bureaucracy, which has made life difficult for gas prospecting firms. Despite years of government promises, Poland's administration is one of the most sluggish in Europe. It takes about seven months to get the permits needed to start drilling, six months to amend the drilling concession and nine months to obtain an environmental decision, according to Kamlesh Parmar, head of the Polish Exploration and Production Industry Association.
(97.) See id. (describing bureaucratic hurdles for natural gas industry in Poland).
(98.) See Arthur Neslen, Poland's shale gas revolution evaporates in face of environmental protests, The Guardian (Jan. 12, 2015), available at https://www.theguar dian.com/environment/2015/jan/12/polands-shale-gas-revolution-evaporates-in-face of-environmental-protests (describing protesting in Poland surrounding fracking debate).
Bordering volatile Ukraine and heavily reliant on gas from Putin's Russia, the promise of secure domestically-produced energy made politicians sit up. A year earlier, in September 2011, the country's thenprime minister Donald Tusk made a bold claim that the shale industry would begin commercial drilling in 2014.
Id. See also Harper, supra note 52 (discussing fracking in Poland). Although fracking in Poland once looked promising, the wells drilled have been disappointing, leading to now low expectations for natural gas development in Poland. Id. '"The chances of Poland delivering commercial shale gas are now zero. It's not really on the agenda,' according to Greg Pytel, European Commission advisor and energy expert at the Sobieski Institute in Warsaw." Id. Renewable energies and nuclear options have become more promising when looking to diversity energy production in Poland. Id.
(99.) See id. (discussing protests in Poland). Protesters in Zurawlow blocked a Chevron shale-drilling site, holding banners and posters and thus halting Chevron's operation. Id. Clearly, protesters can pose issues for the gas company by physically blocking a project. Id.
(100.) See Harper, supra note 52 (discussing failed fracking operations in Poland). Approximately 70% of Poland's natural gas is imported from Russia, and Poland's leaders see this as problematic. Id. But see A.E., Weaning Poland off Russian gas, The Economist (Apr. 4, 2014), available at http://www.economist.com/blogs/easternapproaches/2014/04/poland-and-russia (describing Poland's efforts to reduce reliance on Russia's natural gas). As of April 2014, the expansion of a pipeline pumping station made it accessible for Poland to access natural gas from Germany, thus reducing Poland's reliance on natural gas from Russia. Id. "If you add in domestic gas production, increased capacity in interconnector pipelines with Germany and the Czech Republic, and a soon-to-be-completed liquefied natural gas (LNG) terminal, which will start importing gas on tankers from Qatar next year, then Poland can meet its own gas needs entirely." Id. Although it is foreseeable that Poland may not need natural gas from Russia in the future, they cannot immediately stop natural gas imports from Russia, since they have a long-term contract running until 2022. Id.
Poland also wants to create a mechanism for Europe to share gas in the event of supply disruption. Mr. Tusk said the European Union should raise its participation in funding energy projects, such as gas-pipeline interconnectors and storage facilities, to 75%, especially for investments in Eastern Europe where dependence on Russian oil and gas is much higher than in the West.
(101.) See generally Spence, supra note 27 (discussing federalism and fracking). Although there is a debate on federalism surrounding fracking, there are several valid arguments for having federal regulations applicable to fracking. Id. at 464. One argument for federal regulation of fracking focuses on "the ability or willingness of state governments to regulate." Id. If a state government is unprepared to handle fracking operations in their state (such as lack of resources), then federal regulations would be useful. Id. It can also be argued that fracking is an important national interest, and therefore it should be regulated on the federal level. Id. at 465.
(102.) See id. (arguing rationales for federal regulation of fracking). See also Neuhauser, supra note 59 (discussing Obama's regulation requiring fracking chemical disclosure).
"These common-sense standards will provide a consistent baseline across all America's public lands by ensuring that chemicals are responsibly disclosed, that wells are designed and tested properly, and that contaminated water is being treated and disposed of safely," Hayes, now a visiting senior fellow at the left-leaning Center for American Progress, said in a statement. "These final standards improve upon earlier drafts in several regards--including by requiring more secure storage of wastewater and strengthening chemical disclosure requirements--while providing flexibility to states that have equal or stronger standards."
(103.) See supra part III.A.2.a. (discussing Colorado Supreme Court's ruling on preemption). The Colorado cases exemplify that bans are susceptible to preemption by state law. Id.
(104.) See generally Spence, supra note 27 (discussing fracking and federalism theories). There are pros and cons to allowing one level of regulated fracking over another. Id. Although countries may wish to have uniformity in their regulatory schemes, local governments generally have land use authority and local activity, which can include fracking. Id.
(105.) See Cama, supra note 25 (discussing Halliburton loophole). The Halliburton loophole refers to the Energy Policy Act of 2005, implemented during the George W. Bush administration. Id. It is accordingly named after the oil services company, Halliburton, which the Vice President under Bush, Dick Cheney, was formerly CEO of before becoming Vice President. Id.
(106.) See id. (describing industry benefits of Energy Policy Act).
(107.) See supra Part III.A. (describing proposed FRAC Act bill). The FRAC Act would repeal the exemption that the fracking industry has under the Energy Policy Act of 2005. Id. The act has been under Congress's consideration for over five years. Id.
(108.) See generally Kass, supra note 2 (discussing concerns regarding water safety fracking). Water is an important resource, and potential contamination threats by fracking raise environmental concerns. Id.
(109.) See supra Part III.A.2. (discussing municipal bans in Colorado and New York State). In Colorado, the highest state court struck down local bans on fracking since they were found to be preempted by state law delegating fracking regulatory power to the Colorado Oil and Gas Conservation Commission. Id. In New York, municipal bans were upheld before the Governor enacted a statewide ban in 2014. Id.
(110.) See City of Fort Collins v. Colo. Oil & Gas Ass'n, 369 P.3d 586, 587 (2016) (holding local ban preempted). The court held that the city's five-year ban "rendered] the state's statutory and regulatory scheme superfluous." Id. State interests of uniformity were also important in the court's preemption analysis. Id.
(111.) See supra Part III.A.2.b. (describing New York's highest court upholding of local bans). Unlike Colorado, where local bans were preempted by state law. New York decided to allow municipal bans and moratoria on fracking. Id. The highest court in the state held that localities can use their zoning powers to ban fracking within their jurisdiction. Id.
(112.) See Bierman, supra note 61 (describing Trump's stance on fracking). While Trump wants to deregulate the natural gas industry, he promotes state and local government regulatory authority. Id. Trump has stated that he is in favor of natural gas production in the United States. Id.
(113.) See Verschuuren, supra note 78 (discussing role of local government in United Kingdom). European countries, such as the United Kingdom, promote local land use regulation. Id. In 2000 and 2011, the British Parliament passed two Acts that delegate localities regulatory authorities. Id.
(114.) See Hilson, supra note 46 (explaining fracking related earthquake in Lancashire). See also Vaughan, supra note 94 (discussing anticipated protests in Lancashire). Citizens of Lancashire who oppose fracking in their community are displeased with the national government overruling their local ban on a fracking project. Id.
(115.) See Vaughan, supra note 94 (describing Lancashire situation). See also Follett, supra note 92 (reporting on United Kingdom approving fracking operation). Local regulations being overruled are subject to opposition by local citizens. Id. This demonstrates tensions between national and local government in the United Kingdom. Id.
(116.) See Verschuuren, supra note 78 (describing regulatory process in United Kingdom). See also Vaughan, supra note 94 (discussing citizen protests). Many residents of the United Kingdom who are opposed to fracking have taken to protesting and have been working in collaboration with national environmental groups to pass petitions to ban fracking. Id.
(117.) See Verschuuren, supra note 78 (highlighting local government powers in United Kingdom). Although it is important for a nation to have uniform regulations, local government authority is also an important power. Id.
(118.) See Nelsen, supra note 95 (discussing geological and technological problems with fracking). These problems are disappointing to the natural gas industry and fracking proponents, who saw Poland as the next European country to produce natural gas. Id. See also Harper, supra note 52 (stating disappointing future for Polish fracking).
(119.) See Nelsen, supra note 95 (describing physical problems with fracking projects in Poland). Because there have been physical problems in the test wells in Poland, gas companies may be discouraged to invest in future projects. Id.
(120.) See Nelsen, supra note 98 (stating protests in Poland). Public opposition to fracking in Poland has also presented hurdles for the natural gas industry. Id. Protestors have physically tried to stop natural gas companies from beginning fracking projects. Id.
(121.) See Weaning Poland off Russian gas, supra note 100 (discussing alternative foreign natural gas resources for Poland). Because Poland is currently dependent on Russia for natural gas, and has been for many years, producing natural gas domestically by using fracking would give the nation the opportunity to become energy self-sufficient. Id. Poland could also export natural gas, helping Europe as well as the Polish economy. Id.
(122.) See id. (describing energy policy in Poland). In 2014, a pipeline improvement made it possible for Poland to get natural gas from Germany, therefore depleting their reliance on Russia. Id. See also Harper, supra note 52 (discussing fracking in Poland). Since fracking is no longer on the energy agenda in Poland, companies are now looking to invest in renewable energy and nuclear energy. Id.
(123.) See supra Parts III.A-C (discussing circumstances and political climate surrounding fracking debate).
(124.) See supra notes 2-4 (elaborating on economic benefits and environmental concerns). Although fracking may seem attractive due to its potential boost on the energy market economy, there are documented accidents that cause environmentalists to fear fracking. Id. This has led to citizen protests and opposition to fracking. Id.
(125.) See supra Part IV.B.l (highlighting tensions in levels of government in United Kingdom). Although the United Kingdom does have some national regulatory framework, there are several gaps, as well as clashes between local and national government. Id.
(126.) See Bierman, supra note 61 (discussing Trump's stance on fracking). President Trump wishes to deregulate the fracking industry and does not support implementing more EPA regulations. Id. Trump, however, does support local government's involvement in fracking. Id.
|Printer friendly Cite/link Email Feedback|
|Publication:||Suffolk Transnational Law Review|
|Date:||Jan 1, 2018|
|Previous Article:||IF YOU ARE NOT AT THE TABLE, THEN YOU ARE PROBABLY ON THE MENU: INDIGENOUS PEOPLES' PARTICIPATORY STATUS AT THE UNITED NATIONS.|
|Next Article:||A NEW WORLD ORDER: FIFA FISCAL SCANDAL OPENS THE DOOR FOR THE UNITED STATES DEPARTMENT OF JUSTICE TO PROSECUTE CRIMES COMMITTED ACROSS THE GLOBE...|