Compliance: Battles over hydraulic fracturing moving to the hinterland

Lessons from Pennsylvania and Illinois cases and why they're significant

The Pennsylvania Supreme Court decided an eagerly anticipated case (PDF) in mid-December 2013 involving hydraulic fracturing and local regulations of the process. The Pennsylvania legislature had enacted a statute allowing and providing for the regulation of hydraulic fracturing within the Commonwealth and specifically preempted local governmental units from enacting zoning laws that could restrict or prohibit hydraulic fracturing operations within the local government’s jurisdiction. Robinson Township challenged the pre-emption restriction of local government’s authority under an Environmental Rights Amendment to the Pennsylvania Constitution.

The Pennsylvania Supreme Court decided that case on a 4-2 vote with three of the justices finding the statute did violate the Environmental Rights Amendment to the Pennsylvania Constitution. The fourth justice found the statute unconstitutional on more traditional, substantive due process grounds. The dissenting justices also each analyzed substantive due process and found the statute constitutional.

Even if the statute in Illinois is held constitutional, operators in Illinois have another hurdle to negotiate, and one that is highlighted in an unpublished opinion issued by the Illinois Appellate Court in January 2012. While unpublished opinions have no precedential value in Illinois, the case of Tri-Power Resources, Inc. v. City of Carlyle has received so much attention that its value must be recognized. It is a decision of the Fifth District Appellate Court in Illinois, which sits in southern Illinois, in the heart of oil and gas country and in close proximity to the New Albany Shale formations reported to contain oil and natural gas in rock formations suitable for hydraulic fracturing.

The Illinois General Assembly did not pre-empt local government’s authority to regulate aspects of hydraulic fracturing within local each jurisdiction. Drafters and commentators were of the view that Home Rule jurisdictions would likely enact ordinances that would prohibit, confine or otherwise condition hydraulic fracturing operations within their respective jurisdictions. It was widely held that there would be few hydraulic fracturing operations in many downstate towns of cities of any reasonable size.

Contributing Author

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William J. Anaya

Bill Anaya is an environmental Lawyer licensed in Illinois and Indiana and heads Arnstein &...

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