Partner Wayne D’Angelo and associate Travis Cushman co-authored the Legal Backgrounder article “Fighting the Frack Attack: The State of State Preemption Efforts.” The article notes that, over the last decade, the technological matrimony of modern hydraulic fracturing and horizontal drilling has redrawn America’s domestic energy map. Areas of the country that had never known oil and gas derricks or had not seen significant petroleum development in over a century became key basins of activity. Even regions well accustomed to rigs and pumpjacks witnessed activity on scales never before seen. Markets shifted, geopolitical lines moved, the public gained interest, and media coverage surged. States, appropriately acting as the primary regulators of oil and gas development, passed laws, updated their regulations, or drafted oil and gas statutes for the first time. Federal agencies catalogued their statutory authority to regulate hydraulic fracturing and exercised it to its fullest extent (with mixed results). Many localities also waded into the regulatory fray, testing the extent of their zoning authority by banning hydraulic fracturing and/or horizontal drilling. Those bans created tremendous friction between certain municipalities and activists, while also exacerbating strained relations between regulators and the regulated.
Wayne and Travis outline some of the recent litigation involving state and local jurisdiction over oil and gas development. They note that, even with increasingly clear state oil and gas statutes, questions will remain—and be litigated—over whether, or at what point, local regulations concerning the means by which oil and gas operations are conducted (e.g., timing, road, light, or noise restrictions) intrude on state authority.
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