NRDC recently released a report on state fracking chemical disclosure laws and their enforcement. The report found that more than half of the states with fracking activity currently have no disclosure requirements at all. Of the state disclosure laws, none require comprehensive disclosure. In those states requiring some degree of disclosure, enforcement was found to be uneven.

NRDC lists the following reasons, among others, why the chemical constituents of fracking fluids should be publicly disclosed. Disclosure in advance of the fracking would allow neighboring landowners to establish a baseline for the presence or absence of those chemicals in their groundwater. In the event any contamination is detected, disclosure of the contents of the fracking fluid would help determine the source of the contamination. Medical professionals and first responders would have ready access to the information, rather than having to go through the process of attempting to get confidential information from state agencies, if they have it. Finally, if it is true, as the industry claims, that there is little or no risk to the public from fracking fluids, full disclosure would allow open discussion and analysis that may (or may not) confirm their position.

The study found that of the 29 states with fracking activity, only fourteen required some level of public disclosure as of June, 2012. The states with disclosure requirements in effect as of the time of the study were Alabama, Arkansas, Colorado, Indiana, Louisiana, Michigan, Montana, New Mexico, North Dakota, Ohio, Pennsylvania, Texas, West Virginia, and Wyoming. In many of those states, the report found that information was difficult to obtain. State disclosure websites were found to be difficult to navigate and individual wells difficult to locate.

The site, touted by some industry spokesmen as the full disclosure center, was found by NRDC to be "severely limited". The disclosure form contained fields for only a limited subset of the information that state disclosure rules required. The site did not contain the full required disclosure for any of the states covered by the site.

In this report, NRDC considered New York to be a state in which fracking activity is being conducted with no chemical disclosure law in place. This is because the moratorium on fracking only applies to high volume, high pressure hydraulic fracturing. Fracking using less than 300,000 gallons of water has been occurring and continues to be permissible. New York's proposed fracking regulations would allow drillers to claim the constituents of their frack fluids is confidential business information so that public disclosure would not be permitted except in emergency situations.

Pennsylvania has for some time had an active fracking industry and a continuing controversy over the rights of municipalities to control where fracking occurs. In February of this year the Pennsylvania legislature enacted a law known as Act 13, which attempted to preempt local zoning with regard to drilling in the Marcellus Shale for natural gas. The law essentially attempted to take control of zoning away from municipalities and to determine what could or could not be included in local zoning provisions. It also imposed a state-wide impact fee and gave state officials the authority to waive setback requirements.

In a split decision announced this week, the court overturned on constitutional grounds the attempted preemption of local zoning authority and the provision allowing state officials to waive setback requirements. The court ruled that the preemption provision "violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications -- irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise."

In New York, the courts in the Middlefield and Dryden cases discussed earlier in this blog held that the state had not preempted local zoning in the 1981 Oil, Gas and Solution Mining Law. If these decisions are ultimately upheld, the New York legislature will be faced with the difficult decision of whether to expressly preempt local zoning. The words of the Pennsylvania court not only introduce constitutional issues to be considered in any such override, but also highlight the inappropriateness of state control of local zoning laws and local zoning decisions.

Over the past three years, state and local officials, business leaders, environmentalists, and the public in New York have been locked in a fractious and escalating debate about whether and how to allow high pressure high volume hydraulic fracturing (known as “hydrofracking” or “fracking”), a method of drilling for natural gas, in New York.

Under the Environmental Conservation Law of the State of New York, the New York Department of Environmental Conservation (“DEC”) is the permitting agency for drilling operations and must study the potential environmental impacts of hydrofracking before finalizing its regulations. The DEC has released a revised Draft Supplemental Generic Environmental Impact Statement (“dSGEIS”) regarding hydrofracking. Until the environmental impact statement is final, there is a de facto moratorium on the issuance of drilling permits. In the meantime, the industry is laying the groundwork for obtaining permits by leasing land.

Several towns in the Marcellus Shale region have taken affirmative action against hydrofracking in their communities by temporarily or permanently banning it within their borders. Proponents of hydrofracking have brought legal challenges against the towns of Dryden and Middlefield, which have permanently banned gas drilling through zoning; the plaintiffs assert that the towns lack legal authority to adopt such laws in light of preemptive language contained in the relevant language of the Environmental Conservation Law.

The Town of Middlefield is a rural community which encompasses a portion of the Village of Cooperstown in Otsego County, New York. Its predominant land uses are agriculture, forest and low density residential. Concerned about its water supply and its community character, the Town hired a consultant to analyze the potential impacts of heavy industry on the Town and then amended its comprehensive plan and zoning law to prohibit heavy industry throughout the Town. Heavy industry is broadly defined by its characteristics and includes “drilling of oil and gas wells” as well as chemical manufacturing, petroleum and coal processing and steel manufacturing. The local law to amend the Town’s zoning was adopted on June 14, 2011.

The Town of Middlefield’s law was challenged by Cooperstown Holstein Corporation (“Holstein”), a local dairy operation that has leased approximately 400 acres of its land for natural gas development. In its complaint, Holstein claims that the Oil, Gas and Solution Mining Law of the State of New York (“OGSML”) preempted all local regulation of gas drilling, including the adoption of local zoning laws.

On February 24, 2012, Supreme Court Justice Donald F. Cerio issued a decision denying Holstein’s motion for summary judgment and granting summary judgment in favor of the Town of Middlefield, upholding the Town’s zoning law which banned natural gas drilling. After thoroughly reviewing the legislative history of the OGSML, the court found no provision in it to support Holstein’s position, stating that

[N]either the plain reading of the statutory language nor the history of [the OGSML] would lead this court to conclude that the phrase ‘this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries’ was intended by the Legislature to abrogate the constitutional and statutory authority vested in local municipalities to enact legislation affecting land use.

The court also relied on caselaw interpreting a “strikingly similar” provision of the state’s Mined Land Reclamation Law (“MLRL”), which found that “in the absence of a clear legislative intent to preempt local control over land use, the [MLRL] could not be read as preempting local zoning authority.”

The Middlefield decision upholds the constitutional authority of municipalities to control the land uses within their borders through zoning. Towns seeking to amend their zoning laws to regulate natural gas drilling activities should take care to limit such regulations to the location of such operations, and not the manner of such operations.

The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

This article was prepared with John R. Nolon for a forthcoming article on the regulation of hydrofracking. Mr. Nolon is Professor of Law at Pace Law School, Counsel to the Land Use Law Center, and director of the Kheel Center for the Resolution of Environmental Interest Disputes. He has been a visiting professor at the Yale School of Forestry and Environmental Studies since 2001.

A report released last week by the environmental group Earthworks questions whether the staffing available at DEC will be adequate to handle the increased workload of enforcing the proposed fracking regulations. Indeed, the report questions whether cuts in staff have left DEC unable to competently enforce the current regulations applicable to existing oil and gas wells.

Earthworks' study reported that the number of oil and gas inspections decreased by more than 1,000 per year between 2001 and 2010, while the number of active oil and gas wells increased by approximately 1,000 over the same time period. According to the report, In 2002, DEC inspectors were conducting one inspection per 2.6 active wells. By 2010, they were only able to conduct one inspection per every 4 active wells. In other words, three out of four wells are go without inspection every year. The report also claims inspections are few and far between and assessed penalties are low.

DEC has claimed repeatedly that it will only issue as many fracking permits as it can enforce. If the Eartworks report is correct , DEC will first have to beef up its staff to handle already active oil and gas wells.