October 22, 2014

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Updates on Hydraulic Fracturing in Pennsylvania and New York

Pennsylvania Towns Challenge State Legislation Preempting Local Bans on Hydraulic Fracturing

Last month, the Pennsylvania Legislature passed HB 1950, putting into place comprehensive new rules for hydraulic fracturing activity in the state. Among the new rules are strict limits (akin to those proposed in New York) on where new wells can be located. Citing the need for statewide uniformity to ensure the most efficient development of oil and gas resources, and consistent environmental protections for all residents, the legislature also declared that all local ordinances -- including local zoning rules -- must allow for reasonable development of oil and gas resources consistent with the new legislation. In short, HB 1950 preempts all stricter local zoning ordinances, including any ordinances that might seek to totally ban hydraulic fracturing.

The preemption provisions of HB 1950 quickly came under fire from environmental and community groups. The controversy escalated last week when seven Pennsylvania towns – joined by Delaware Riverkeeper – filed suit challenging the provisions as an unconstitutional stripping of the towns’ power to zone and a denial of their ability to carry out their constitutional obligation to protect public natural resources. That case, Robinson Township et al. v. Commonwealth of Pennsylvania et al. (No. 284-MD-2012) is pending in the Commonwealth Court in Harrisburg.

The use of local zoning ordinances to ban hydraulic fracturing is contentious in neighboring New York – where two such ordinances recently withstood legal challenge and are now headed for appellate court review. How the challenges are resolved is important since local zoning ordinances have the potential to create a difficult "patchwork quilt" of regulations with which oil and gas explorers and developers would have to comply.

Coalition to Oppose Hydraulic Fracturing in Empire State

An eclectic mix of organizations are coordinating and working together on hydraulic fracturing (fracing), last week several groups announced the formation of a coalition -- "New Yorkers Against Fracking" — to organize their efforts in the Empire State. The coalition is led by several anti-fracing groups historically active in New York: Food & Water Watch; Water Defense; Catskill Mountainkeeper; and United for Action (David Braun). The coalition has received initial funding from Sandra Steingraber, the biologist and environmental writer who recently won the Heinz Award for her work on how chemical contaminants in air, water and food endanger human health. Steingraber is donating her $100,000 prize to the group.

The coaltion's stated goal is to achieve an outright ban on fracing, suggesting that it will not seek to work with New York State Department of Environmental Conservation (NYSDEC) to bolster the fracing rules that the agency expects to finalize this year. This is an uphill battle in New York, where all indications are that Governor Cuomo and NYSDEC intend to allow fracing, albeit subject to the nation's strictest regulations. Not surprisingly, the more mainstream "national" NGOs (e.g., Sierra Club, Natural Resources Defense Council) -- which largely have resisted pursuing unlikely bans in favor of the more realistic goal of achieving stricter regulation over hydraulic fracturing -- do not appear to be participating in the coalition. Because these national NGOs are working to influence the rules that fracing stakeholders will have to play by for years to come, their efforts arguably are the ones that fracing stakeholders should be keeping a closer eye on for now.

PA Revises Permits to Require Recycling/Re-use of Hydraulic Fracturing Water

The Pennsylvania Department of Environmental Protection (PADEP) announced that it was revising a general permit, commonly required in connection with hydraulic fracturing (fracing) operations, to require that fracing wastewater be treated and recycled to other fracing wells. The aim is to reduce both fresh water withdrawals and wastewater disposals. Water can be treated on-site in a "closed loop" process, or sent to one of approximately ten companies in the keystone state that currently are authorized to treat and recycle fracing wastewater.

While this announcement from PADEP seems to have generated little press attention, in our view it has the potential to be significant because recycling obligations almost certainly will drive up per well costs, at least in the short term. Closed-loop treatment is more expensive than acquiring fresh (even non-potable) water or treating used water from other processes.

© 2014 McDermott Will & Emery

TRENDING LEGAL ANALYSIS


About this Author

Partner

James A. Pardo is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm's New York office.  He focuses his practice on complex litigation, including class actions, product liability and multi-party mass tort cases.

James works closely with corporate clients to identify, evaluate and address potential environmental, toxic tort and products liabilities before they occur.  He has helped many companies develop and implement environmental/health/safety compliance programs, and has served as lead environmental/toxic tort counsel on dozens of...

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Brandon H. Barnes, McDermott Will Emery law Firm, Environmental Attorney
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Brandon H. Barnes is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office. He focuses his practice on environmental law. Brandon has been appointed to serve as the 2011-2012 Vice Chair to the American Bar Association’s Young Lawyers Division Committee on Environmental, Energy and Natural Resources.Brandon is also Vice Chair of Special Projects for the Pesticides, Chemical Regulation, and Right-to-Know Committee of the Section of Environment, Energy, and Resources of the ABA. He has recently been...

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