There is much controversy about the mining of shale gas through a process known as hydraulic fracturing (hydrofracking) in the Marcellus Shale formation, one of the largest shale gas areas in the world. A debate is raging about its economic benefits and environmental impacts as the New York State’s Department of Environmental Conservation (DEC) considers what standards to require when it issues permits to drillers. New York State law gives permitting authority to DEC and calls into question the historical home rule authority of localities to control the location and land use impacts of gas wells, through comprehensive planning, zoning, and development regulations. This article describes and discusses this debate, the tension between state and local control, local zoning limitations imposed on drilling and ensuing litigation, and options available to municipalities to control the impact of drilling on their local environment and economies. The regulation, advocacy, and negotiation regarding hydrofracking raise critical questions for economic and environmental policy because the facts regarding this emerging technology are highly disputed, the forces pushing and resisting shale gas mining are powerful, and the authority of each level of government is unclear. At stake are critical policy issues about who decides issues that have national, regional, and local impacts and the role of regulation in developing effective strategies for resolving such complex environmental and economic conflicts.
John R. Nolon & Victoria Polidoro, Hydrofracking: Disturbances Both Geological and Political: Who Decides?, 44 Urb. Law. 507 (2012), available at http://digitalcommons.pace.edu/lawfaculty/834/.