Regulation of Fracking Is Not a Taking of Private Property

Authors

Kevin Lynch

Publication Date

2016

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Fracking, Government regulation, Oil and gas development, Impact on densely populated urban, Suburban areas

Abstract

As the use of fracking has spread during the recent oil and gas boom, inevitable conflicts have arisen between industry and its neighbors, particularly as fracking has moved into densely populated urban and suburban areas. Concerned over the impacts of fracking – such as risks to health and safely, diminished property values, air and water pollution, as well as noise, traffic, and other annoyances – many people have demanded a government response.

Government regulation of fracking has struggled to catch up, although in recent years many state and local governments have taken steps to reduce the impacts of fracking in their communities. This article focuses on government restrictions in New York and Colorado, two of the key battlegrounds in the fight over fracking. New York recently prohibited fracking across the entire state, after several towns had enacted their own bans. In Colorado, the people have used the ballot initiative process to enact restrictions on fracking directly.

The industry has responded not only with public relations spending to improve the fracking’s damaged reputation, but also legal challenges to these efforts to rein in oil and gas development. In addition to suing local governments, often arguing they do not have authority to regulate fracking, industry threatens to bring costly takings claims for compensation due to alleged economic harms.

This Article examines the numerous legal and factual issues that should make it difficult for industry to succeed on fracking/takings claims. First, regulation of fracking, even including outright bans, can almost always be defended as necessary to prevent a nuisance or other background principle of law that justifies government regulation. Even if a nuisance defense could be overcome, industry would have difficulty proving that regulation has destroyed all economic value in their property, unless courts take a narrow view of property that would highlight the arbitrary nature of the “denominator problem.” When fracking/takings claims are considered under the default balancing of the Penn Central case, takings are unlikely to be found except in rare outlier cases. Finally, because requiring governments to pay compensation in fracking/takings cases would likely create a windfall for industry, particularly if the oil and gas eventually is extracted in the future, courts should resist the temptation to rule against government restrictions to protect public health, safety, and the environment.

Copyright Statement / License for Reuse

This work is licensed under a Creative Commons Attribution 4.0 International License.

Rights Holder

Kevin Lynch

Provenance

Received from author

File Format

application/pdf

Language

English (eng)

Extent

60 pgs

File Size

738 KB

Publication Statement

Copyright held by the author. User is responsible for all copyright compliance.

Publication Title

University of Cincinnati Law Review

Volume

84

First Page

38

Last Page

97

Recommended Citation

Kevin Lynch, Regulation of Fracking Is Not a Taking of Private Property, 84 U. Cin. L. Rev. 38 (2016).