Tag: local government

Wallach v. Town of Dryden and Local Control of Hydraulic Fracturing

By Carter Hall—November 20, 2014 at 11:03 a.m.

jay_easementOn June 30 of this year the Court of Appeals of New York issued its final ruling in Wallach v. Town of Dryden, holding that municipalities in New York State have the authority to exclude hydraulic fracturing from their borders through zoning.[1] Although the case hinged upon the interpretation of a New York statute with no reach beyond the state’s borders, the Town of Dryden decision has significance for supporters and opponents of hydraulic fracturing throughout the country as a sign that local governments may erect serious barriers to the controversial practice even in the absence of stringent Federal or state regulation.

Dryden, a town of less than 15,000 people located outside of Ithaca, New York, prohibits all “industrial” development within town borders through its zoning code.[2] In August 2011 the town amended its zoning ordinance to specify that all activities related to oil and gas extraction are included in this general prohibition on industrial development.[3] Anschutz Exploration Corporation, an energy company that held leases to oil and gas rights on several Dryden properties, sued the town in New York State court in September 2011, arguing that New York’s Oil, Gas and Solution Mining Law (“OGSL”)[4] preempted the amendment. Dryden prevailed on a motion for summary judgment, which was affirmed by state appellate court; the case reached New York’s highest court in summer 2014.[5]

The legal issue in the case was whether OGSL’s supersession clause, which states that the OGSL supersedes all “local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,”[6] prevented towns like Dryden from passing zoning ordinances that exclude hydraulic fracturing. To answer this question, the Court of Appeals engaged in a straightforward exercise in statutory interpretation. Examining the plain language, statutory scheme, and legislative history of the law, the Court concluded that the supersession clause was intended to prevent municipalities from directly regulating oil and gas development—i.e., imposing specific technical and operational requirements on drillers.[7] Finding no indication that the OGSL was intended to curtail towns’ traditional home rule authority to enact zoning ordinances, the Court held that Dryden’s zoning amendment is not precluded under the supersession clause and affirmed the intermediate appellate court’s decision.[8]

The Court of Appeals decision vindicated hydraulic fracturing bans and moratoria enacted in Dryden and 179 other municipalities, with an additional 86 municipalities considering similar measures as of October 9, 2014. Many of these towns are underlain by the Marcellus Shale formation—estimated to be the largest natural gas reserves of any formation in the United States—and in the long run these ordinances could permanently place large quantities of natural gas beyond the reach of extractors. However, the Town of Dryden did not have the immediate effect of halting any ongoing hydraulic fracturing operations. New York State has had a de facto moratorium on the practice for six years, with Governor Andrew Cuomo’s administration refusing to permit any drilling until a study examining its health impacts is completed. Accordingly, no hydraulic fracturing was actually underway in New York State throughout the Town of Dryden litigation. Of course, if the moratorium is ever lifted, the decision will have real practical effect on the ability of energy companies to exploit New York’s natural gas reserves.

Because Town of Dryden was a state court decision hinging a narrow question of interpretation of a state statute, it has no legal effect beyond New York’s borders. However, the symbolic significance of Dryden’s victory reaches nationwide. Mary Anne Sumne, Dryden’s town supervisor, has expressed hopes for the decision’s impact beyond New York’s borders: “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.”

The ability of towns in these states and others to restrict hydraulic fracturing will depend upon the interaction between state-specific home rule jurisprudence and natural resource laws, but Dryden’s high-profile victory has encouraged towns that have enacted similar ordinances from Hawaii to California to Texas. With the national politicians of both political parties largely in support of hydraulic fracturing and state-level governments varying dramatically in their oil and gas extraction regulations, local control efforts such as Dryden’s present one of the most formidable obstacles to the controversial practice.

[1] Wallach v. Town of Dryden, 23 N.Y.3d 728, 739 (2014), reargument denied, No. 2014-867, 2014 WL 5366261 (N.Y. Oct. 16, 2014).
[2] Id. at 739-40.
[3] Id. at 740.
[4] Id.
[5] Wallach, 23 N.Y. at 741.
[6]N.Y. Envtl. Conserv. Law § 23-0303(2) (McKinney).
[7] SeeWallach, 23 N.Y. at 750.
[8] Id. at 753-54.

Promises and Pitfalls in China’s New Environmental Protection Law

file0001225592472(1)By Daniel Carpenter-Gold—September 14 at 6:30 p.m.

To read more on this topic, look for Mr. Carpenter-Gold’s student note in the upcoming Volume 39.1 of the Harvard Environmental Law Review.

Chinese environmental policy has been rapidly modernizing over the past few years, likely in response to highly visible pollution. Among these changes, the Environmental Protection Law (EPL) has been almost completely rewritten to greatly strengthen the country’s environmental law regime. One-off fines (criticized as being far less than the actual cost of compliance with the law) are out; daily penalties (Art. 59), confiscation of equipment (Art. 25), and even jail time for “the person directly in charge” of the polluting entity (Art. 63) are in. The groundwork has been laid for a comprehensive emissions permitting system (Art. 45). Regions which fail to meet environmental targets designated by the central government will face blanket suspensions of the right to undertake new construction projects (Art. 44). Finally, a number of new avenues for public participation have been opened up (Arts. 53–58). Significant among these is the right, for some organizations, to bring litigation in the public interest against polluters (Art. 58).

Many of these provisions will be familiar to students and practitioners of US environmental law. This is no accident—substantial effort, by NGOs and the US government alike, has gone into encouraging the Chinese government to adopt more Western environmental standards. These projects have run the gamut from regular visits by EPA’s general counsel, to experts’ reports, to study tours for academics and practitioners, and they have paid off in the new EPL, whose language equals or even exceeds that of US environmental legislation.

In addition to borrowing from international experience, China has used its own local governments to experiment with expanded standing provisions. Environmental public-interest litigation in China has, over the past decade, been slowly introduced in some counties and municipalities. Although cases under these regulations have been almost exclusively brought by government-organized NGOs, they seemed to have demonstrated the viability of a Chinese environmental public-interest litigation system.

The central government, apparently encouraged both by the international community and by the success of such provisions at the local level, amended the Civil Procedure Law (CPL) in 2012 to grant standing to “relevant organizations” that bring lawsuits to address environmental harms. This should have enabled a new wave of litigation from environmental NGOs. Indeed, high-powered organizations such as the All-China Environment Federation attempted to file a number of cases after the change. However, outside of the regions which already had provided for environmental public-interest litigation, the courts have universally refused to allow cases brought under the amended law, offering only thin excuses or none at all.

Why couldn’t this policy, which has been in use for years in some parts of China and for decades abroad (with no greater specificity), succeed at the national level? The answer lies in the particular structure of China’s judiciary: the local governments in China control the budget and personnel decisions of local courts. Where the local government does not wish to have the expanded regulatory oversight that public-interest litigation brings, it can easily pressure the courts into refusing the cases. Neither US nor local jurisdictions which had implemented expanded standing provisions had to cope with the divide between central and local governments: in the US this was not an issue because of American judicial independence, and the Chinese localities which allowed environmental public-interest litigation were presumably already supportive of environmental protection.

Regulatory decisions are always of uncertain impact, and a country can be forgiven for taking paths already trod rather than experimenting on their own people. But borrowing policies from other countries, or even from their own subunits, can only work to the extent that the borrower carefully evaluates the differences between the two systems. In amending the CPL, China seems to have overlooked the problem of local-government resistance, presumably because the cases which were used in developing the law did not have this problem.

The experience of the 2012 CPL suggests that the public interest litigation provisions of the Environmental Protection Law may be weaker in practice than they appear on paper. The new law asks a lot of local governments, and particularly local Environmental Protection Bureaus (EPBs), the local-level agencies in charge of enforcing most environmental regulations, which are beholden to the governments at their level to the same extent that the local courts are. However, the EPL takes some steps toward strengthening central control over EPBs by allowing EPBs at a higher governmental level to discipline EPBs within their jurisdiction (Art. 67, for example). There is also talk of increasing central control of the court system, which could remove some of the local governments’ influence. There is likely to remain a substantial gap between the law on paper and the law as enforced, but the overall trend is toward strengthening governance and the rule of law. That’s good news for China’s environment.

Mapping Fracking: An Analysis of Law, Power, and Regional Distribution in the United States

By Benjamin E. Apple

This Note posits a framework with which to analyze U.S. fracking development at local and regional scales. It aims to illuminate the ways in which three legal regimes — private rights, public government regulation, and local government law — influence the interactive dynamics between local and regional actors, which in turn determine the distribution of fracking impacts across a regional mosaic of municipalities. Deploying this framework, the Note first concludes that law and economic-based disparities in bargaining power across municipalities should result in unequal exposure to fracking development and its suite of consequences, both beneficial and detrimental. It then sketches the substantive motivations, powers, and stakes of the most common actors in fracking development. Finally, it analyzes the stakes of a pending Pennsylvania Supreme Court case, Robinson Township v. Commonwealth, regarding the scope of municipal power to regulate fracking development.

Cite as: Benjamin E. Apple, Mapping Fracking: An Analysis of Law, Power, and Regional Distribution in the United States, 38 Harv. Envtl. L. Rev. 217 (2014).

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Fracking, PA: The legal, the political, and the negotiable

By Ben Apple — Sept. 4, 2013 at 12:02pm

A fracking site in Pennsylvania (photo credit: Nicholas A. Tonelli, Flickr).
A fracking site in Pennsylvania (photo credit: Nicholas A. Tonelli, Flickr).

There’s a battle over fracking in Pennsylvania—but it’s probably not the one you’ve heard about. For years now, the future of Pennsylvania’s fracking development has hung in the balance as seven municipalities remain locked in litigation with the Commonwealth over the constitutionality of Act 13, an oil and gas statute that radically limits the regulatory powers of local governments. At issue in the ongoing case, Robinson Township v. Commonwealth, is whether the state, through Section 3304 of Act 13, can legally require municipalities to permit oil and gas operations—drilling, processing, compressing, etc.—in all of their land use zones: industrial, commercial and residential.

Notably, none of the parties’ legal arguments before the Pennsylvania Supreme Court touch upon the details of what is really happening: a political struggle between oil and gas interests on one side and municipalities defending their powers of self-determination on the other. A description of this political reality has instead been left to the dozen or so amicus briefs submitted to the Pennsylvania Supreme Court by interested parties including industry, unions, consultants, environmentalists, property owners, Democratic state legislators, and local governments.

However, even the amicus briefs fall flat in their limited analysis of what is at stake. On the pro-Section 3304 side of the dispute, the industry hails the benefits of a more uniform and predictable jurisdictional landscape over which it can wander freely. Oil and gas-related unions and consultants praise the plentiful jobs that will come with an unhindered industry. One alliance of property owners requests protection from ‘unreasonable’ local zoning and regulation. On the other side, municipal officials deplore their potential loss of power “to determine [] the long-term character of their local communities,” and to protect themselves from the risks and impacts of fracking development.[1] Environmentalists stress that the revocation of local zoning powers is completely unnecessary for successful oil and gas development.

These amicus arguments provide snapshots that belie the ongoing processes of public and private negotiations and local lawmaking that form the nucleus of fracking development, an operation that involves not just drilling, but everything that supports it, including trucks, roads, short- and long-term housing, local businesses, and public safety and health services. If upheld, Section 3304 will do more than just take away regulatory options for municipalities; it will dramatically shift the balance of bargaining powers between drilling companies, landowners, and local governments as they negotiate so many other aspects of development.

In this bargaining context, Section 3304 would have four clear consequences. The first, and potentially most salient, effect would be the provision’s forced opening of large amounts of land to fracking operations, crippling any strategic position that landowners may currently gain from the relative scarcity of drilling lands in localities. Second, the consequent rise in the number of landowners capable of leasing their land will both increase the competition for leasing between them and reduce their chances of negotiating reasonable regulation and risk-management through organization and cooperation. Third, where municipalities could usually step in to remedy these sorts of collective action problems, Section 3304 will revoke their powers to do so. Finally, municipalities will lose the leverage that comes with threats of imposing strict zoning regulations on fracking operations.

Considering the poor economic conditions that still plague so many suburban and rural municipalities, not only will these places have fewer bargaining tools to fight for responsible and safe development, but they will also have few, if any, alternatives. This reveals the true danger of Section 3304: If upheld, it will not just radically limit municipal powers over fracking development; it will leave oil and gas companies holding all the cards. And in that scenario, the types of destructive fracking development warned of by so many will become almost inevitable.

[1] Brief of Amicus Curiae Pennsylvania State Association of Township Supervisors, Robinson Tp. v. Com., No. 63 MAP 2012, at 3 (Penn. 2012).

In First Address as EPA Head, Administrator Gina McCarthy Stresses Collaboration and the “Opportunity of Climate Change”

Mountains_NH_scaravelloBy Molly Cohen — Aug. 1, 2013 at 7:47am

“Let’s talk about [climate change] as the opportunity of a lifetime, because there are too many lifetimes at stake,” newly-confirmed EPA Administrator Gina McCarthy proclaimed during her speech on this past Tuesday at Harvard Law School, her first as head of the EPA.  Addressing a crowd of nearly 300 faculty, students, environmental officials, and community members, Administrator McCarthy described how fighting climate change can spur the economy and noted the need for the federal government to partner with and follow the lead of state and local actors.

Throughout her address, Administrator McCarthy stressed the opportunities that preventing climate change offers, explaining that curbing greenhouse gases can help spark innovation, grow jobs and strengthen the economy. McCarthy urged consideration of climate change not as an ancillary environmental issue, but rather as a core economic challenge that must be faced head on. She expressed hope that the country’s dialogue can move beyond the false dichotomy of environmental protection versus economic growth, citing examples of cost-effective environmental initiatives such as the Clean Air Act, whose economic benefits outweigh its costs thirty to one, and the Brownfields Development Program, which leverages seventeen dollars of private financing for every dollar of EPA funding for cleanup and redevelopment activities.

Administrator McCarthy applauded state and local government environmental protection and climate change efforts, noting that EPA should and would follow state and local governments’ lead.  She congratulated Massachusetts, Boston and Somerville on their environmental efforts, citing the cleanup of Boston Harbor as a major local environmental success.  McCarthy stressed that EPA cannot and should not dictate solutions and instead must collaborate with state and local partners. McCarthy characterized her job as one of chief collaborator and explained, “I don’t think it is my job out of the gate to know what the path forward is. It is my obligation to let those voices be heard and listen to them.”

Throughout her speech, McCarthy was both realistic and ambitious.  “It is not supposed to be easy. It is supposed to be hard,” she explained, in reference to finding solutions to the most pressing and complicated environmental issues of the day.  She added, “climate change will not be resolved overnight, but it will be engaged over the next three years—that I can promise you.”

McCarthy was introduced by her daughter, Maggie McCarey, a Boston-area environmental professional who provided a personal portrait of Administrator McCarthy.  Harvard Law School Dean Martha Minow kicked off the remarks, lauding recent successes of the environmental community at the Law School, mentioning in particular the efforts of the Environmental Policy Initiative, the Environmental Law and Policy Clinic, and the Environmental Law Society.