September 6, 2012
A recent report from the US Geological Survey suggests that there may be natural gas deep below the surface of Western and Central Massachusetts. Here’s the naturalgaswatch.org story on the subject, which contains a link to the report itself. If advances in horizontal drilling and hydraulic fracturing (fracking) continue at their present rate, it may not be long before energy companies find that it is economically feasible to start exploring for, and then extracting, natural gas in Western Massachusetts.
In my home town of Amherst I have asked the Select Board to prepare for this possibility. As a first step, the board is asking the town’s Water Supply Protection Committee to look at the issue. Then I hope we can get to work drafting a well-reasoned, science-based amendment to the zoning bylaws. But do towns and cities really have the power to regulate fracking? Surprisingly, the answer is yes.
Because Congress exempted fracking from some provisions of the Safe Drinking Water Act and other environmental laws, it’s up to each state to fashion its own regulatory approach. When state legislatures fail to act — or enact legislation that undermines local autonomy — municipalities can step in. Some, such as Pittsburgh, whose provision was drafted by the Community Environmental Legal Defense Fund, and Dryden, New York, simply ban natural gas extraction outright. Others make extraction a conditional use, requiring case-by-case review, rather than a permitted or as-of-right use. Many (though not all) of these zoning ordinances survive the judicial scrutiny that follows the energy industry’s inevitable courtroom challenge.
For example, when the natural-gas boom hit Pennsylvania some townships tried to control fracking by adopting strict zoning ordinances. The state legislature responded by giving the Department of Environmental Protection (DEP) the power to override those local ordinances. Seven communities sued, with Robinson Township in the lead, and the state’s highest court, the Commonwealth Court, recently ruled in their favor.
This article provides an overview of the case and a link to the court’s decision.
Communities in Massachusetts have one important advantage over their counterparts in Pennsylvania and New York: Exploration is not under way yet, never mind extraction. That means towns like Amherst have time to design bylaw amendments that will both safeguard clean air and water and stand up in court.