Fracking or No Fracking, Who Gets to Decide?

Fracking is a difficult issue, as it allows for a lot of domestic energy production which brings down consumer costs and gives our foreign policy establishment more flexibility, but also introduces new environmental concerns that range from the traditional degradation associated with fossil fuel extraction to the urgent concerns we have with climate change to the associated earthquake damage we’ve seen in fracking areas. These concerns have led some areas (New York state, for example) to ban fracking outright. In other places, the bans have been passed locally.

That’s what happened in Colorado, and the Supreme Court that just struck down those local ordinances.

Colorado’s highest court overturned two cities’ bans on hydraulic fracturing Monday, ruling that state law preempts them.

The state’s Supreme Court cited the main state law regulating oil and natural gas drilling and found that lawmakers clearly intended to severely limit the ability of cities and towns to regulate or outlaw the controversial practice also known as fracking.

It’s a major loss for environmentalists, who have tried in recent years to get local fracking bans passed in places where state leaders are friendly to the oil and gas industry.

“The Oil and Gas Conservation Act and the [Colorado Oil and Gas Conservation] Commission’s pervasive rules and regulations … convince us that the state’s interest in the efficient and responsible development of oil and gas resources includes a strong interest in the uniform regulation of fracking,” the court wrote in striking down Longmont, Colo.’s ban on fracking.

It had a similar finding for a five-year moratorium in Fort Collins, saying the measure “materially impedes the effectuation of the state’s interest in the efficient and responsible development of oil and gas resources.”

The decision could have effects beyond those two cities and in other localities in Colorado that have sought to regulate fracking without outright banning it.

The oil industry applauded the decision.

I try to separate out the two distinct issues here. Whether fracking is a good or bad thing, and whether it should be outlawed or simply regulated, are matters that need to be decided by scientists, regulators and lawmakers, not judges. But what level of government should get to decide? Should it be the federal EPA, or each of the state legislatures where fracking is viable, or every potentially impacted community?

I’d have to study the issue further to be sure, but I kind of doubt that fracking policy should be set by cities rather than (at least) states. So, I don’t really think the Colorado ruling is off base, even if the outcome is more fracking when we probably should have less.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.