Utilizing Home Rule: The Case for Restricting Hydraulic Fracturing at the Local Level

Abstract

The surge of hydraulic fracturing in the United States has spawned concern over public health risks associated with the practice. Some states, such as New York, have ultimately banned hydraulic fracturing citing significant environmental and public health hazards. Nationally, debate over regulation of hydraulic fracturing has taken center stage. The current regulatory scheme is a patchwork of state regulation with minimal federal oversight that leaves many individuals at risk of health and property damages. For individuals negatively affected by hydraulic fracturing, pursuing a cause of action may not be a viable option. Poorly defined property rights and significant evidentiary barriers often hinder individuals from the ability to purse a legal remedy for injuries suffered as a result of nearby hydraulic fracturing operations. Using their home rule powers, municipalities may be in the best position to insulate their residents from health and property damages by restricting or banning hydraulic fracturing within their borders. This article will analyze why hydraulic fracturing poses substantial health and property risks; why the currently regulatory regime leaves individuals vulnerable; and will suggest strategies for municipalities to restrict or ban hydraulic fracturing with their borders.