Fracking and Federalism


A funny thing has happened in the fracking wars: All of a sudden, the interventionist groups who are usually fans of centralized power—such as having the federal government issue edicts on carbon emissions—all of a sudden have discovered the virtues of federalism. Specifically, they don’t want state governments limiting the ability of local governments to regulate or even put a moratorium on hydraulic fracturing.

For example, from this news story about a legal battle in upstate New York, we read:

Lenape Resources’ high profile lawsuit versus the Town of Avon was heard by New York State Supreme Court Judge Robert Wiggins in Geneseo on Monday.

Lenape, a local producer of natural gas, has challenged the legal right of the Town of Avon to regulate drilling and recovery of natural gas within the township. On June 28, 2012, in a split 3-to-2 vote, the Avon Town Board enacted a one-year moratorium which temporarily banned the production of natural gas by methods utilizing high volume hydraulic fracturing, or hydrofracking, of rock sediment.

At the hearing, [counsel] McClaren made a motion for dismissal of the suit on the grounds that, “New York has traditionally given authority to local municipalities to control the land use within their borders through zoning.”

“We don’t believe there is any legal basis for any of the Lenape claims,” he added.

McClaren further noted, “The Court of Appeals has already held that towns and villages can continue to zone in respect to open mines — such as gravel mines. Our position is that the same holds true with respect to oil and gas wells. It’s an issue for the local municipalities to decide if they want them — and, if they do want them, where they want them.”

“It’s not an issue which should be forced upon these municipalities by the state or by the oil and gas industry,” McClaren asserted. [Bold added.]

Well imagine that! McClaren—who is echoing the sentiments expressed by many opponents of fracking across the country—doesn’t like the state government coming in, and telling smaller jurisdictions how they should run their affairs.

Let’s push this to the logical conclusion, shall we? Suppose a local landowner is informed of the potential risks, and still decides that he wants to take a handsome payment in exchange for granting a company permission to develop the natural resources on his property. What business does the local government have, in telling him what he can and can’t do on his own property? Why should this important decision be “forced upon him” by the local municipality?

If the anti-fracking groups were consistent advocates of decentralization of political power, we could take their arguments seriously. In general, they have no problem whatsoever with a higher level of government laying down a one-size-fits-all rule. The next time a carbon tax or cap-and-trade comes up, let’s see if these environmental groups agitate for the right of local municipalities to make their own rules, and not have decisions rammed down their throat from DC.

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