The political economy of local vetoes

Texas Law Review

Volumn 93, Issue 2, 2014, Pages 351-413

  Spence, David B ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84919786046     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (176)

1. James Madison’s discussion of geographic factions in Federalist No. 10 concerns this problem. THE FEDERALIST NO. 10 (James Madison). The nineteenth-century utilitarian philosophers, like Jeremy Bentham and John Stuart Mill, wrestled with the problem of accounting for different preference intensities. For a digestible summary of their approaches to this issue, see Robert Cavalier, The British Utilitarians, ONLINE GUIDE TO ETHICS & MORAL PHIL., http://caae.phil.cmu.edu/cavalier/80130/part1/sect4/BenandMill.html, archived at http://perma.cc/ 44EF-5F2V. The idea has loomed large in positive political theory as well. Kenneth Arrow’s Impossibility Theorem employs what positive theorists call an “ordinality principle,” the idea that the one-person-one-vote principle requires us to ignore preference intensities. Kenneth J. Arrow, Values and Collective Decision-Making, in PHILOSOPHY, POLITICS, AND SOCIETY (THIRD SERIES) 215, 227–30 (Peter Laslett & W.G. Runciman eds., 1978). Responses to Arrow’s argument sometimes argue that preference intensity ought to matter. See, e.g., Donald E. Campbell, Social Choice and Intensity of Preference, 81 J. POL. ECON. 211, 211 (1973) (proposing a modified form of Arrow’s theorem that accounts for intensity of preference). And iconic works in American political theory address the issue. See, e.g., ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 119 (1956) (“[N]o solution to the intensity problem through constitutional or procedural rules is attainable.”).
2. Local Actions Against Fracking, FOOD &WATER WATCH, http://www.foodandwaterwatch.org/water/fracking/fracking-action-center/local-action-documents/, archived at http://perma.cc/6L oil and gas production generally, some ban fracking, some ban only high-volume hydraulic fracturing (HVHF) (the pairing of fracking with horizontal drilling, requiring the use of larger volumes of water), and some impose regulation that falls short of an outright ban (though a subset of these are de facto bans). Id. The list includes ordinances enacted by overlapping jurisdictions. Id. For example, in New York State, the City of Ithaca and the Township of Ithaca both lie within Tompkins County. See Living in Tomkins County, TOMKINSCOUNTYNY.GOV, http://www.tomp kinscountyny.gov/living, archived at http://perma.cc/HMH3-XVZL (listing the communities that lie within Tomkins County). All three local jurisdictions have enacted anti-fracking ordinances. Local Actions Against Fracking, supra.
3. Local Actions Against Fracking, supra note 2.
4. There are, of course, many older takings cases in the minerals context that predate the fracking era. For a discussion, see generally Bruce M. Kramer, Local Land Use Regulation of Extractive Industries: Evolving Judicial and Regulatory Approaches, 14 UCLA J. ENVTL. L. & POL’Y 41 (1996).
5. I use the term “utility” here broadly—the way welfare economists or utilitarian philosophers use it—to include not only the tangible (changes in money, wealth) but intangible (changes in happiness) as well.
6. This analysis does not require a background in economics or utilitarian philosophy, but will employ some common economic or utilitarian concepts, such as Kaldor–Hicks optimality, see infra note 179, and Coasean bargaining, see infra notes 185–89 and accompanying text. However, it does not include the claim that welfare or utility maximization is the only valid criterion by which these conflicts can be resolved. To the contrary, it acknowledges implicitly Michael Dorff’s argument that the choice of how to aggregate utility within a social welfare function implicates values. Michael B. Dorff, Why Welfare Depends on Fairness: A Reply to Kaplow and Shavell, 75 S. CAL. L. REV. 847, 850 (2002).
7. Thomas W. Merrill & David M. Schizer, The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, 98 MINN. L. REV. 145, 153 (2013). Most productive shale layers exist at depths of between one and two miles below the surface. Id.
8. As used here, “fracking” includes HVHF. Drillers have been fracking vertical wells for decades, but HVHF was first used widely in the Barnett Shale (Texas) and the Haynesville Shale (Louisiana), but quickly spread to other areas, including North Dakota’s Bakken Shale, Arkansas’s Fayetteville Shale, the Eagle Ford Shale in south Texas, and the Marcellus Shale in the northeastern United States. The development and spread of fracking is chronicled in RUSSELL GOLD, THE BOOM: HOW FRACKING IGNITED THE AMERICAN ENERGY REVOLUTION AND CHANGED THE WORLD (2014). There are several other largely untapped shale deposits, including the Monterrey Shale in California. Norimitsu Onishi, Vast Oil Reserve May Now Be Within Reach, and Battle Heats Up, N.Y. TIMES, Feb. 3, 2013, http://www.nytimes.com/2013/02/04/us/v ast-oil-reserve-may-now-be-within-reach-and-battle-heats-up.html?pagewanted=all, archived at http://perma.cc/MMW9-KGFJ.
9. U.S. natural gas production has been increasing steadily since 2005. U.S. Natural Gas Gross Withdrawals, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/dnav/ng/hist/n9010us2M.htm, archived at http://perma.cc/8BE4-SH9C.
10. The U.S. field production of crude oil in 2013 was 2,723,599 thousand barrels. U.S. Field Production of Crude Oil, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/dnav/pet/hist/LeafHand ler.ashx?n=PET&s=MCRFPUS1&f=A, archived at http://perma.cc/KBU3-7F6F. This level of field production is significantly higher than what the United States produced in 2012 (2,377,806); 2011 (2,060,398); and the period 2004–2010 (ranging from 1,830,002 to 2,000,861). Id. Indeed, the closest match to the current levels of production can be found in the mid- to late 1980s (production in the high 2,000,000s and low 3,000,000s). Id.
11. Prices hit lows in 2012 of about $2 per million British thermal unit (MMBtu). 2012 Brief: Average Wholesale Natural Gas Prices Fell 31% in 2012, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/todayinenergy/detail.cfm?id=9490, archived at http://perma.cc/RM5D-BV99.
12. U.S. Dry Natural Gas Production Growth Levels Off Following Decline in Natural Gas Prices, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/todayinenergy/detail.cfm?id=6630, archived at http://perma.cc/SD6K-KJHM. Natural gas is a mixture that is mostly methane and is often found dissolved in or on top of oil deposits (“associated gas”) or other liquid hydrocarbons. Natural Gas Explained, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/energyexplained/index.c fm?page=natural_gas_home, archived at http://perma.cc/RW9P-M45H. Dry gas refers to gas that is produced without coproduction of liquids. Id.
13. High Value of Liquids Drives U.S. Producers to Target Wet Natural Gas Resources, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/todayinenergy/detail.cfm?id=16191, archived at http://perma.cc/U8JF-54UH. Some hydrocarbons that are chemically close to methane exist as liquids at normal surface pressures and temperatures and are sometimes produced with methane. Id. These include propane and ethane. Id.
14. See, e.g., Kevin Bullis, Shale Gas Will Fuel a U.S. Manufacturing Boom, MIT TECH. REV., Jan. 9, 2013, http://www.technologyreview.com/news/509291/shale-gas-will-fuel-a-usmanufacturing- boom/, archived at http://perma.cc/PS6A-XMUB (ascribing increased investment in manufacturing in the United States to low natural gas prices); Shale Gas Fuels U.S. Manufacturing Renaissance, BUSINESS WIRE (Jan. 10, 2013, 11:18 AM), http://www.businessw ire.com/news/home/20130110005889/en/Shale-Gas-Fuels-U.S.-Manufactuing-Renaissance#.VB SpufldXKx, archived at http://perma.cc/G8S8-R5EJ?type=source (describing ExxonMobil’s projections of increased U.S. investment in chemicals manufacturing due to low gas prices).
15. Merrill & Schizer, supra note 7, at 157–61. See infra section III(B)(1) for further discussion of those economic impacts.
16. In November 2013, the spot price for LNG delivered to Asian markets in late December 2013 had increased from under $14/mmBtu in December 2012 to around $17.90/mmBtu. Eric Yep, Asian LNG Prices Rise Sharply, MONEYBEAT, WALL ST. J. (Nov. 8, 2013, 2:34 AM), http://blogs.wsj.com/moneybeat/2013/11/08/asian-lng-prices-rise-sharply, archived at http://perm a.cc/89V5-APS2. Similarly, in December 2013 Europe prices were “at their highest since 2006” at about $11.50/mmBtu. Robert Tuttle & Anna Shiryaevskaya, Qatar to Boost Europe LNG Sales as Gas Trades at 7-Year High, BLOOMBERG NEWS (Dec. 23, 2013, 12:06 PM), http://www.bloomberg.com/news/2013-12-23/qatar-to-boost-european-lng-sales-as-gas-trades-at- 7-year-high.html, archived at http://perma.cc/TUK8-PL5G. U.S. prices in October 2013 were about $3.80/mmBtu. U.S. to Asia Gas Price Gap to Vanish Over Long Term -Exxon, RETERS, Oct. 14, 2013, archived at http://perma.cc/5L9W-W9WK.
17. As of October 2014, three new export terminals had been approved, one of which was under construction. North American LNG Import/Export Terminals Approved, FED. ENERGY REG. COMMISSION (Oct. 14, 2014), https://www.ferc.gov/industries/gas/indus-act/lng/LNG-approved.pdf, archived at http://perma.cc/XQH3-KGSJ?type=pdf.
18. Zack Colman, Oil Firms, Governors Urge DOE to Expand Natural-Gas Exports, HILL, Jan. 28, 2013, http://thehill.com/policy/energy-environment/279609-oil-firms-governors-urgenatural- gas-export-expansion, archived at http://perma.cc/W5K9-MQL2; Jim Efstathiou Jr., Oil Supply Surge Brings Calls to Ease U.S. Export Ban, BLOOMBERG (Dec. 16, 2013, 11:01 PM), http://www.bloomberg.com/news/2013-12-17/oil-supply-surge-brings-calls-to-ease-u-s-exportban. html, archived at http://perma.cc/3RJ9-QMKH?type=source.
19. SHALE GAS PROD. SUBCOMM., SEC’Y OF ENERGY ADVISORY BD., SECOND NINETY DAY REPORT 1 (2011).
20. The Ground Water Protection Council (GWPC), an association of state regulators, has favored well-regulated shale gas development. See GROUND WATER PROT. COUNCIL, STATE OIL AND GAS REGULATIONS DESIGNED TO PROTECT WATER RESOURCES 24 (2014), http://www.gwpc.org/sites/default/files/files/Oil%20and%20Gas%20Regulation%20Report%20H yperlinked%20Version%20Final-rfs.pdf, archived at http://perma.cc/4MNH-5TWM (noting that the alternatives to hydraulic fracturing in reservoirs with low permeability are “neither environmentally desirable nor economically viable”). With its indefinite moratorium on highvolume fracking, New York is an exception to this generalization. See, e.g., N.Y. COMP. CODES R. & REGS. tit. 9, § 7.41 (2011) (requiring, through a 2010 executive order issued by former Governor David Paterson, further environmental review of high-volume fracking in the Marcellus Shale).
21. See RICHARD A. MULLER & ELIZABETH A. MULLER, CTR. FOR POLICY STUDIES, WHY EVERY SERIOUS ENVIRONMENTALIST SHOULD FAVOUR FRACKING 1 (2013) (arguing that “[e]nvironmentalists who oppose the development of shale gas and fracking are making a tragic mistake”); ALEX TREMBATH ET AL., BREAKTHROUGH INST., COAL KILLER: HOW NATURAL GAS FUELS THE CLEAN ENERGY REVOLUTION 4 (2013) (asserting that natural gas offers a way for the United States to accelerate the transition to zero-carbon energy); Mark Brownstein, Industry and Environmentalists Make Progress on Fracking, EDF VOICES: PEOPLE ON THE PLANET, ENVTL. DEF. FUND (Mar. 28, 2013), http://www.edf.org/blog/2013/03/28/industry-and-environmentalistsmake- progress-fracking, archived at http://perma.cc/X4VQ-DHXG (noting that a coalition of environmental groups and industry executives agreed to fifteen standards related to shale gas development in the Appalachian Basin).
22. See Why EDF Is Working on Natural Gas, ENVTL. DEF. FUND (Sept. 10, 2012), http://blogs.edf.org/energyexchange/2012/09/10/why-edf-is-working-on-natural-gas/, archived at http://perma.cc/4PME-Q25Q (supporting fracking for three principle reasons, including the elimination of coal-powered electricity).
23. Michael Rubinkam, Natural Gas Drillers Target U.S. Truck, Bus Market, ASSOCIATED PRESS, Nov. 25, 2012, available at bigstory.ap.org/article/natural-gas-drillers-target-us-truck-busmarket, archived at http://perma.cc/E8DR-9ET8.
24. About three-fourths of the local ordinances listed on the Food & Water Watch website were enacted by local governments in the states of New York, New Jersey, Pennsylvania, and Ohio. Local Actions Against Fracking, supra note 2.
25. The film depicts a variety of environmental ills in gas-production regions and implies that fracking is responsible for those ills. GASLAND (International WOW Company 2010). For example, residents who live near natural gas drilling are shown lighting their tap water on fire, suggesting that drilling operations caused methane to leach into their well water. Id. at 23:00– 24:00, 27:04–29:28. In the film Calvin Tillman, then the mayor of Dish, Texas, alleges that pollution associated with fracking operations has caused acute health problems among his constituents. Id. at 1:13:30–1:16:00 26. A group called Americans Against Fracking has argued for a full fracking ban within the United States. About the Coalition, AMS. AGAINST FRACKING, http://www.americansagainstfracki ng.org/about-the-coalition/, archived at http://perma.cc/Y2Z5-RM6D. The group’s board features Gasland director Josh Fox, actor Mark Ruffalo, and singer Natalie Merchant. Advisory Board, http://www.americansagainstfracking.org/about-the-coalition/advisory-board/, archived at http://perma.cc/QU49-4PS9.
26. See Don’t Get Fracked!, NAT. RESOURCES DEF. COUNCIL, http://www.nrdc.org/health/dr illing/, archived at http://perma.cc/NL9S-ZR93 (listing steps individuals can take to “limit the dangers” from drilling activity); End Destructive Drilling, SIERRA CLUB, http://content.sierraclub.org/naturalgas/clean-up-drilling, archived at http://perma.cc/R27X-4JQP (“We must also support local communities that wish to restrict gas development and ensure that gas development is not allowed in areas that are environmentally inappropriate.”). The Environmental Defense Fund, by contrast, has been generally supportive of responsible shale gas production, though it continues to study the problem of methane leakage. Why EDF Is Working on Natural Gas, supra note 22.
27. See Adam Briggle, Should Cities Ban Fracking?, SLATE (Dec. 24, 2012, 9:00 AM), http://www.slate.com/articles/technology/future_tense/2012/12/longmont_co_has_banned_frackin g_is_that_a_good_idea.html, archived at http://perma.cc/56GH-J7PY (describing the “divided heart of the anti-fracking movement” and distinguishing “pragmatists” seeking reform from “idealists” seeking to ban fracking); Susan Phillips, Fractures in the Anti-Fracking Movement, STATEIMPACT PA. (May 21, 2013, 6:19 PM), http://stateimpact.npr.org/pennsylvania/2013/05/21/ fractures-in-the-anti-fracking-movement/, archived at http://perma.cc/5NE6-8N7A (reporting that other environmental groups are “shunning” the Environmental Defense Fund for its participation in the regulatory effort with the industry).
28. There are, for example, several pro-fracking jurisdictions in New York State’s southern tier (regions that one anti-fracking group calls “Vichy, New York”). See Chip Northrup, Leases Can’t Vote. But Crooks Can, NO FRACKING WAY (Aug. 16, 2012), http://www.nofrackingway.us /2012/08/16/leases-cant-vote-but-crooks-can/, archived at http://perma.cc/R7A3-R49Q (characterizing “Vichy, New York” as the towns that have “unilaterally surrendered their responsibilities” in favor of the “frackers” by passing resolutions in support of the practice).
29. Lindsay Abrams, Dallas Passes De Facto Ban on Fracking, SALON (Dec. 12, 2013, 1:23 PM), http://www.salon.com/2013/12/12/dallas_passes_de_facto_ban_on_fracking/, archived at http://perma.cc/9KZT-BL7J.
30. As of this writing, the City of Los Angeles is drafting an anti-fracking ordinance. Emily Alpert Reyes, L.A. City Council Moves Toward Fracking Ban, L.A. TIMES, Feb. 28, 2014, http://www.latimes.com/local/lanow/la-me-ln-fracking-ban-vote-20140228,0,6877842.story, archived at http://perma.cc/F46B-548S. In the November 2014 elections, voters passed ballot initiatives to ban or restrict fracking passed in Denton, Texas, Athens, Ohio, and two California counties. Michael Bastasch, Fracking Bans Pass in California, Ohio, Texas Towns, DAILY CALLER (Nov. 5, 2014, 1:16), http://dailycaller.com/2014/11/05/fracking-bans-pass-in-californiaohio- texas-towns/, ar-chived at http://perma.cc/9R8H-9BEK. Similar indicatives failed in three other Ohio towns and in Santa Barbara County in California. Id. In Colorado, efforts to put an anti-fracking measure on the statewide ballot failed after the Governor agreed to appoint a commission to recommend changes to state fracking rules. Mark Jaffe, Hickenlooper Compromise Keeps Oil and Gas Measures Off Colorado Ballot, DENVER POST, Aug. 4, 2014, http://www.denverpost.com/business/ci_26272493/hickenlooper-tries-broker-last-minute-deal-oilgas- colorado, archived at http://perma.cc/8XSZ-KZJK. 32. “Produced water” is water that comes up through the well from underground containing contaminants that originate underground, such as radioactivity or salts. Erich Schramm, What Is Flowback, and How Does It Differ from Produced Water?, INST. FOR ENERGY & ENVTL. RES. FOR NORTHEASTERN PA., http://energy.wilkes.edu/pages/205.asp, archived at http://perma.cc/QE 7T-CDA2. It is to be distinguished from “flowback water,” which refers to fracking fluids that return to the surface through the well. Id.
31. Some fracking fluid constituents are carcinogenic or otherwise toxic. U.S. ENVTL. PROT. AGENCY, EPA 816-R-04-003, EVALUATION OF IMPACTS TO UNDERGROUND SOURCES OF DRINKING WATER BY HYDRAULIC FRACTURING OF COALBED METHANE RESERVOIRS 4-09 to -10 tbl.4-1 (2004). These chemicals appear in fracking fluids in extremely dilute concentrations, however. Id. at 4-17; see also Lara A. Haluszczak et al., Geochemical Evaluation of Flowback Brine from Marcellus Gas Wells in Pennsylvania, USA, 28 APPLIED GEOCHEMISTRY 55, 61 (2013) (finding that flowback waters contained levels of various potentially dangerous elements above acceptable limits for drinking water); R. Timothy Weston, Water Supply and Wastewater Challenges in Marcellus Shale Development, 30 ENERGY & MIN. L. INST. § 15.01, § 15.05, at 570–72 (2009). 55–56 (Dec. 6, 2010) (identifying the challenge presented by concentrations of salts, oil and gas, and potentially harmful chemicals in flowback water); Environmental Impacts Associated with Disposal of Saline Water Produced During Petroleum Production, U.S. GEOLOGICAL SURV., http://toxics.usgs.gov/photo_gallery/osage.html, archived at http://perma.cc/ 6MXK-T3MX (cataloguing photographic evidence of environmental damage or sites being monitored for environmental damage caused by saline-water disposal).
32. U.S. ENVTL. PROT. AGENCY, supra note 33, at 6-1 to -2. The groundwater layer is typically much closer to the surface than the shale layer—typically within a few hundred feet of the surface. GROUND WATER PROT. COUNCIL & ALL CONSULTING, U.S. DEP’T OF ENERGY, MODERN SHALE GAS DEVELOPMENT IN THE UNITED STATES: A PRIMER 54 (2009) [hereinafter MODERN SHALE GAS PRIMER]. 35. “Thermogenic” methane is methane produced deep underground by ancient decay processes. MICHAEL D. HOLLOWAY & OLIVER RUDD, FRACKING: THE OPERATIONS AND ENVIRONMENTAL CONSEQUENCES OF HYDRAULIC FRACTURING 71–72 (2013). This is the kind of methane that is typically produced by a natural gas well. It can be distinguished from “biogenic” methane, which resides closer to the surface, and is a much younger origin. Id.
33. See, e.g., Cases Where Pit Substances Contaminated New Mexico’s Ground Water, N.M. OIL CONSERVATION DIVISION, http://www.emnrd.state.nm.us/ocd/documents/GWImpactPublic RecordsSixColumns20081119.pdf, archived at http://perma.cc/L4VR-DYZK (listing examples of incidents where storage pits caused groundwater pollution).
34. For an example of this kind of incident, see Well ID: 37-125-24174, WELLWIKI (June 13, 2011), available at http://wellwiki.org/wiki/37-125-24174, archived at http://perma.cc/Q6ZYXA4E.
35. Three high-profile water contamination incidents in shale gas production regions have fed concern about water pollution risks. The first involved the contamination of drinking-water wells with methane in Dimock, Pennsylvania, an incident featured in Gasland. See Cabot Allowed to Resume Fracking in Dimock Twp., TIMES LEADER, Feb. 16, 2013, http://timesleader.com/stories/ Cabot-allowed-to-resume-fracking-in-Dimock-Twp,194830, archived at http://perma.cc/9F8U- 5XBJ (reporting that Dimock residents accused Cabot of polluting their water supply “with methane gas and toxic chemicals”); Michael Rubinkam, Pennsylvania Regulators Suspend Cabot Oil and Gas Drilling Over Contamination of Wells in Pa., STAR TRIB., Apr. 15, 2010, http://www.startribune.com/templates/Print_This_Story?sid=90960344, archived at http://perma.c c/H5EZ-SAGX (describing the discolored, foul water that residents experienced after Cabot drilled in Dimock). The second incident, also in 2009, involved an algae bloom in Dunkard Creek in West Virginia that resulted in a massive fish kill. The EPA and the West Virginia Department of Environmental Protection concluded that drainage from a nearby coal mine caused the spill, but some fracking activists (and an EPA biologist) believe that wastewater from fracking operations may have been the cause. Mike Soroghan, In Fish-Kill Mystery, EPA Scientist Points at Shale Drilling, N.Y. TIMES, Oct. 12, 2011, http://www.nytimes.com/gwire/2011/10/12/12greenwire-infish- kill-mystery-epa-scientist-points-at-s-86563.html?pagewanted=all, archived at http://perma.c c/GWG6-J58E?type=live. Finally, in 2011, the EPA concluded that fracturing fluids had contaminated a drinking-water aquifer in the town of Pavilion, Wyoming, though the industry disputes that conclusion. See Chris Tucker, *Update XIII* Six — Actually, Seven — Questions for EPA on Pavilion, ENERGY IN DEPTH (Feb. 20, 2013, 9:09 AM), http://www.energyindepth.org/si x-questions-for-epa-on-pavillion/, archived at http://perma.cc/U574-T4VP (summarizing the EPA’s finding that the drinking-water wells in Pavilion were “below established health and safety standards” and citing one industry actor’s vocal opposition).
36. In 2012, researchers at the State University of New York at Stony Brook sought to quantify the risks of groundwater contamination by estimating the probabilities of various types of accidents that could result in a spill. The study found significant spill risks, even in the best-case scenario, and urged further study into the possibility of wastewater recycling. Daniel J. Rozell & Sheldon J. Reaven, Water Pollution Risk Associated with Natural Gas Extraction from the Marcellus Shale, 32 RISK ANALYSIS 1382, 1391 (2012).
37. See Barclay R. Nicholson & Stephen C. Dillard, Analysis of Litigation Involving Shale and Hydraulic Fracturing, FULBRIGHT & JAWORSKI L.L.P. 1 (Jan. 1, 2013), available at http://www.nortonrosefulbright.com/files/us/images/publications/20130228WhitePaperShaleandH ydraulicFracturing.pdf, archived at http://perma.cc/3GWT-XEQS (explaining that more than thirty-five lawsuits complaining of groundwater contamination have been filed since August 2009).
38. Kevin Begos & Michael Rubinkam, Online List IDs Water Wells Harmed By Drilling, WASH. TIMES, Aug. 28, 2014, http://www.washingtontimes.com/news/2014/aug/28/pa-releaseslist- of-wells-impacted-by-drilling/?page=all, archived at http://perma.cc/B8Y-6C49. For the complete list, see Water Supply Determination Letters, PA. DEP’T ENVTL. PROTECTION, http://files.dep.state.pa.us/OilGas/BOGM/BOGMPortalFiles/OilGasReports/Determination_Letter s/Regional_Determination_Letters.pdf, archived at http://perma.cc/H7SU-2LGS.
39. The so-called Duke Study sampled well water before and after fracking and reached mixed conclusions, finding no evidence of groundwater contamination by fracking fluids or wastewater but evidence that levels of thermogenic methane were higher in shallow groundwater aquifers near natural gas production wells than elsewhere in the same aquifers. See Stephen G. Osborn et al., Methane Contamination of Drinking Water Accompanying Gas-Well Drilling and Hydraulic Fracturing, 108 PNAS 8172, 8174–75 (2011); see also Jackson et al., Increased Stray Gas Abundance in a Subset of Drinking Water Wells Near Marcellus Shale Gas Extraction, 110 PNAS 11250, 11251 (2013) (finding significantly higher concentrations of methane in the drinking water of homes near shale gas wells compared to homes farther away) 43. We can distinguish the number of cases of methane-contaminated groundwater from the number of cases of methane in groundwater caused by fracking. The former number is very large, as methane occurs naturally in groundwater in many places. See SEAMUS MCGRAW, THE END OF COUNTRY 31 (2011) (describing the story of a New York man in the 1820s building a chimney of stones to capture methane bubbling out of Canadaway Creek and setting fire to it); GREGORY ZUCKERMAN, THE FRACKERS: THE OUTRAGEOUS INSIDE STORY OF THE NEW BILLIONAIRE WILDCATTERS 376 (2013) (quoting a Dimock, Pennsylvania resident saying that “she and her friends regularly lit water afire in their grade school bathroom in the late 1960s, long before fracking came to her part of the state”).
40. The U.S. Geological Survey compared concentrations of methane and other constituents in 127 water wells in the Fayetteville shale gas production region before and after shale gas production operations, finding no evidence of contamination of either methane or fracking fluid constituents. TIMOTHY M. KRESSE ET AL., U.S. GEOLOGICAL SURVEY, SHALLOW GROUNDWATER QUALITY AND GEOCHEMISTRY IN THE FAYETTEVILLE SHALE GAS-PRODUCTION AREA, NORTH-CENTRAL ARKANSAS, 2011, at 27–28 (2012), available at http://pubs.usgs.gov/sir/ 2012/5273/sir2012-5273.pdf, archived at http://perma.cc/2VZU-SN87. A 2011 Pennsylvania State University study sampled drinking-water wells before and after nearby fracking operations and found no significant increase in well contamination from either methane or fracking fluid constituents. ELIZABETH W. BOYER ET AL., THE IMPACT OF MARCELLUS GAS DRILLING ON RURAL DRINKING WATER SUPPLIES 21 (2011); see also ERNEST J. MONIZ ET AL., THE FUTURE OF NATURAL GAS: AN INTERDISCIPLINARY MIT STUDY 39–40 (2011) (reaching a similar conclusion by looking to widely reported drilling incidents and concluding that none “conclusively demonstrate[s] contamination of shallow water zones with fracture fluids”).
41. See NATHAN RICHARDSON ET AL., RES. FOR THE FUTURE, THE STATE OF STATE SHALE GAS REGULATION 28, 46–50 (2013), available at http://www.rff.org/rff/documents/RFF-Rpt- StateofStateRegs_Report.pdf, archived at http://perma.cc/XBT7-K4YD (noting the rapid state regulatory changes regarding fracking).
42. See ZUCKERMAN, supra note 43, at 377 (quoting University of Pittsburgh environmental engineer Radisav Vidic: “I’ll take my chances on winning the lottery over the chances of frack fluid in the groundwater”).
43. E.g., id.; Sheila M. Olmstead et al., Shale Gas Development Impacts on Surface Water Quality in Pennsylvania, 110 PNAS 4962, 4962, 4966 (2013) (finding elevated levels of chlorides but not suspended solids in streams near shale gas wastewater treatment facilities on the Marcellus Shale); Nathaniel R. Warner et al., Impacts of Shale Gas Wastewater Disposal on Water Quality in Western Pennsylvania, 47 ENVTL. SCI. & TECH. 11849, 11854–55 (2013) (finding elevated levels of contaminants downstream of a water treatment facility in the Marcellus Shale).
44. Kelly O. Maloney & David A. Yoxtheimer, Production and Disposal of Waste Materials from Gas and Oil Extraction from the Marcellus Shale Play in Pennsylvania, 14 ENVTL. PRAC. 278, 278 (2012). Disposal through a wastewater treatment facility would be subject to Clean Water Act pretreatment standards, which prohibit discharges that “[i]nterfere with” the operation of the plant or cause pollutants to “[p]ass [t]hrough” to surface waters. 40 C.F.R. § 403.8(a) (2014).
45. See PA. DEP’T OF ENVTL. PROT., PA MARCELLUS SHALE GAS WELL DEVELOPMENT SUMMARY, available at http://www.nytimes.com/interactive/2011/02/27/us/natural-gas-document s-1.html?_r=0#document/p294/a9916, archived at http://perma.cc/Y53E-6LXF (explaining that “the geology and need for seasonal subsurface natural gas storage in Pennsylvania will allow only for the very limited application of deep well injection as a disposal pathway”); Ian Urbina, Regulation Lax as Gas Wells’ Tainted Water Hits Rivers, N.Y. TIMES, Feb. 26, 2011, http://www.nytimes.com/2011/02/27/us/27gas.html, archived at http://perma.cc/87GF-UDLY (stating that drillers in Pennsylvania “discharge much of their waste through sewage treatment plants into rivers”).
46. See Sally Entrekin et al., Rapid Expansion of Natural Gas Development Poses a Threat to Surface Waters, 9 FRONTIERS ECOLOGY ENV’T. 503, 506, 510 (2011) (noting approximately half of the 1,400 reported drilling violations in Pennsylvania between 2008 and 2010 dealt with surface water contamination, resulting in a need for regulation concerning the proximity of natural gas developments to surface water); Roger Real Drouin, As Fracking Booms, Growing Concerns About Wastewater, YALE ENV’T 360 (Feb. 18, 2014), http://e360.yale.edu/feature/as_fracking_b ooms_growing_concerns_about_wastewater/2740/, archived at http://perma.cc/75FP-L3PJ (recognizing that more stringent wastewater regulations enacted in 2012 may have contributed to improved Pennsylvania industry practices); cf. ZUCKERMAN, supra note 43, at 365 (quoting George Mitchell, a fracking pioneer, to the effect that fracking can be done safely “if they watch and patrol the wildcat guys... [who] don’t give a damn about anything; the industry has to band together to stop the isolated incidents”).
47. This kind of discharge would be subject to the requirement to obtain a National Pollutant Discharge Elimination System permit under the Clean Water Act. 33 U.S.C. § 1342 (2012).
48. MODERN SHALE GAS PRIMER, supra note 34, at 64. The New York State Department of Environmental Conservation estimates that a typical frack job would require “2.4 million to 7.8 million gallons of water.” N.Y. STATE DEP’T OF ENVTL. CONSERVATION, SUPPLEMENTAL GENERIC ENVIRONMENTAL IMPACT STATEMENT ON THE OIL, GAS AND SOLUTION MINING REGULATORY PROGRAM 5-93 (2011).
49. Some climate-science researchers believe that climate change will tend to exacerbate drought in the southwestern United States. See, e.g., Dan Huber & Jay Gulledge, Global Warming Contributing to Texas Drought, CENTER FOR CLIMATE & ENERGY SOLUTIONS (Oct. 14, 2011), http://www.c2es.org/blog/huberd/global-warming-contributing-texas-drought, archived at http://p erma.cc/NS23-BX9J.
50. 18 C.F.R. § 401.35(b) (2014) (requiring permission from the Delaware River Basin Commission for projects that “may have a substantial effect on the water resources” in the area); id. § 806.4(a) (requiring a permit from the Susquehanna River Basin Commission for water consumption and withdrawal above specified amounts).
51. See Kate Galbraith & Terrence Henry, As Fracking Proliferates in Texas, So Do Disposal Wells, TEX. TRIB. (Mar. 29, 2013), http://www.texastribune.org/2013/03/29/disposal-wellsfracking- waste-stir-water-concerns/, archived at http://perma.cc/B47N-RC65 (addressing the issue that underground injection through wastewater disposal wells is becoming a “common landmark in the drilling regions of Texas” instead of reducing waste by recycling water). Texas water rights rules also discourage conservation of water and promote waste. Farmers and others who hold surface water rights under the prior appropriation doctrine must use them or lose them, while groundwater is governed by the rule of capture, which also promotes consumption. RONALD A. KAISER, TEX. PUB. POLICY FOUND., SOLVING THE TEXAS WATER PUZZLE: MARKET-BASED ALLOCATION OF WATER 18–19, 22 (2005).
52. The Texas Legislature created a new funding mechanism for water projects after successive years of drought. H.R. 4, 83d Leg., Reg. Sess. (Tex. 2013); Corrie MacLaggan, Texas Governor Signs Bill Key to $2 Billion Water Plan, REUTERS, May 28, 2013, http://www.reuters.com/article/2013/05/28/us-usa-texas-water-idUSBRE94R0ZF20130528, archived at http://perma.cc/8AGB-U4YY.
53. See, e.g., Robin Kundis Craig, Climate Change, Regulatory Fragmentation, and Water Triage, 79 U. COLO. L. REV. 830 (2008) (“Tensions and conflicts in water management are only likely to increase as climate change alters the expected availability of water in many areas of the country.”); Paul Faeth, U.S. Energy Security and Water: The Challenges We Face, 54 ENV’T: SCI. & POL’Y FOR SUSTAINABLE DEV., Jan. 2012, at 4, 10 (noting that water resources in the Southwest are some of the most likely to be impacted by climate change).
54. David J. Hayes, Is the Recent Increase in Felt Earthquakes in the Central US Natural or Manmade?, U.S. DEP’T INTERIOR (Apr. 11, 2012), http://www.doi.gov/news/doinews/Is-the- Recent-Increase-in-Felt-Earthquakes-in-the-Central-US-Natural-or-Manmade.cfm, archived at http://perma.cc/V93-65VP (noting an increased number of earthquakes in areas where there is an injection of wastewater in deep disposal wells); Robert B. Jackson et al., The Environmental Costs and Benefits of Fracking, 39 ANN. REV. ENV’T & RESOURCES 327, 344–46 (2014).
55. Jim Efstathiou Jr., Texas Earthquakes Tied to Extraction in Fracking, BLOOMBERG (Aug. 27, 2013, 4:02 PM), http://www.bloomberg.com/news/2013-08-27/texas-earthquakeslinked- to-oil-extraction-by-fracking.html, archived at http://perma.cc/F5J-SU6T.
56. Pete Spotts, How Fracking Might Have Led to an Ohio Earthquake, CHRISTIAN SCI. MONITOR, Jan. 2, 2012, http://www.csmonitor.com/Science/2012/0102/How-fracking-mighthave- led-to-an-Ohio-earthquake, archived at http://perma.cc/V7G6-RL57.
57. John Daly, U.S. Government Confirms Link Between Earthquakes and Hydraulic Fracturing, OILPRICE.COM (Nov. 8, 2011, 1:49 PM), http://oilprice.com/Energy/Natural- Gas/U.S.-Government-Confirms-Link-Between-Earthquakes-and-Hydraulic-Fracturing.html, archived at http://perma.cc/F8UU-8GF5; see also Katie M. Keranen et al., Potentially Induced Earthquakes in Oklahoma, USA: Links Between Wastewater Injection and the 2011 MW 5.7 Earthquake Sequence, 41 GEOLOGY 699, 700 (2013) (analyzing seismic data and finding a relationship between seismic activity in Oklahoma and wastewater injection).
58. Alec Liu & Jeremy A. Kaplan, Earthquakes in Arkansas May Be Man-Made, Experts Warn, FOX NEWS (Mar. 1, 2011), http://www.foxnews.com/scitech/2011/03/01/frackingearthquakes- arkansas-man-experts-warn/, archived at http://perma.cc/R2NX-ZBKC.
59. See AUSTIN A. HOLLAND, EXAMINATION OF POSSIBLY INDUCED SEISMICITY FROM HYDRAULIC FRACTURING IN THE EOLA FIELD, GARVIN COUNTY, OKLAHOMA 25 (2011), available at http://www.ogs.ou.edu/pubsscanned/openfile/OF1_2011.pdf, archived at http://per ma.cc/M8PH-SPUE (hypothesizing that hydraulic fracturing could cause small tremors in surrounding areas); Garry White, Cuadrilla Admits Drilling Caused Blackpool Earthquakes, TELEGRAPH, Nov. 2, 2011, http://www.telegraph.co.uk/finance/newsbysector/energy/8864669/ Cuadrilla-admits-drilling-caused-Blackpool-earthquakes.html, archived at http://perma.cc/J3XUELY8 (reporting that an oil and gas company admitted it is “highly probable” that several small tremors were caused by fracturing operations under a unique set of circumstances). But see Vicki Smith, Texas Seismologist: Fracking Doesn’t Cause Earthquakes, FUELFIX (Sept. 9, 2013, 12:30 PM), http://fuelfix.com/blog/2013/09/09/texas-seismologist-fracking-doesnt-cause-earthquakes/, archived at http://perma.cc/7MTT-2W4E (positing that fracking itself is not the reason for an increase in earthquakes and laying the blame on wastewater disposal).
60. Efstathiou, supra note 59.
61. See 40 C.F.R. §§ 144.21–.22,.28,.60 (2013) (defining and regulating Class II wells (oil and gas) under the SDWA, and nowhere requiring seismicity review).
62. OHIO ADMIN. CODE 1501:9-1-02 (2014); State of the State—Ohio Fracking Regulations, VINSON & ELKINS (May 21, 2012), http://www.velaw.com/resources/OhioFrackingRegulations.a spx, archived at http://perma.cc/Z6AH-V3NH.
63. Arkansas: Disposal Well Is Ordered Closed, N.Y. TIMES, July 27, 2011, http://www.nytimes.com/2011/07/28/us/28brfs-DISPOSALWELL_BRF.html?_r=0, archived at http://perma.cc/T9ZB-3FQJ; Ben Casselman, Quakes Push Arkansas to Limit Gas-Waste Wells, WALL ST. J., July 26, 2011, http://online.wsj.com/news/articles/SB100014240531119047723045 76468430846341882, archived at http://perma.cc/NLX8-NULS.
64. See Erica Greider, Shaken and Stirred: How the Earthquakes in the Barnett Shale Turned Some Small-town Folks into Environmentalists, TEX. MONTHLY, March 2014, available at http://www.texasmonthly.com/story/how-barnett-shale-earthquakes-turned-folks-into-environmen talists, archived at http://perma.cc/6AUT-QMQ3 (describing the activism of Azle, Texas residents in response to frequent wastewater-disposal-related earthquakes); Jason Allen, North Texans Protest Fracking, Earthquakes at Railroad Commission Meeting, CBS DFW (Jan. 22, 2014, 5:51 PM), http://dfw.cbslocal.com/2014/01/21/north-texans-protest-fracking-earthquakes-at-railroadcommission- meeting/, archived at http://perma.cc/HF3S-JR2X (reporting on North Texas residents’ efforts to urge the Texas Railroad Commission to shut down wastewater disposal wells following a “swarm of earthquakes”).
65. See supra note 25.
66. Lisa M. McKenzie et al., Human Health Risk Assessment of Air Emissions from Development of Unconventional Natural Gas Resources, 424 SCI. TOTAL ENV’T 79, 82–83 & tbl.1 (2012); Mark Jaffe, CU Denver Study Links Fracking to Higher Concentration of Air Pollutants, DENVER POST, Mar. 20, 2012, http://www.denverpost.com/breakingnews/ci_2021072 0/cu-denver-study-links-fracking-higher-concentration-air, archived at http://perma.cc/AXW8- 3MGV; see also Lisa Song, Hazardous Air Pollutants Detected Near Fracking Sites, BLOOMBERG (Dec. 3, 2012, 6:02 PM), http://www.bloomberg.com/news/2012-12-03/hazardous-air-pollutantsdetected- near-fracking-sites.html, archived at http://perma.cc/84KJ-TF8T (reporting on an air quality study near Colorado gas wells that detected airborne contaminants at harmful levels).
67. Theo Colborn et al., An Exploratory Study of Air Quality Near Natural Gas Operations, 20 HUM. & ECOLOGICAL RISK ASSESSMENT 86, 98–99 (2014) (“[T]hese findings suggest that the concentrations of [pollutants] in rural neighborhoods near natural gas operations deserve further investigation, regardless of the source.”); see also Cathy Proctor, Colorado to Study Air Pollution from Oil and Gas Operations, DENVER BUS. J., Jan. 9, 2013, http://www.bizjournals.com/denver/ news/2013/01/09/colorado-to-study-air-pollution-from.html?page=all, available at http://perma.c c/GJR6-5XR9 (announcing the launch of a new, three-year study by the Colorado health department that aims to determine the effects of oil and gas activity on air pollution and public health); cf. ZUCKERMAN, supra note 43, at 378 (documenting complaints by residents of Pinedale, Wyoming, of “watery eyes” and “shortness of breath” due to elevated ozone levels associated with natural gas production).
68. E.g., Steve Everley, *UPDATE IV* Eight Worst Inputs Used in Colorado Health Study, ENERGY IN DEPTH (May 16, 2012, 9:09 AM), http://www.energyindepth.org/non-elite-eightworst- inputs-used-in-new-colorado-health-study/, archived at http://perma.cc/H5J4-FQRW.
69. Robert W. Howarth et al., Methane and the Greenhouse-Gas Footprint of Natural Gas from Shale Formations, 106 CLIMATIC CHANGE 679, 685, 687(2011).
70. The alleged errors include failing to distinguish between methane emission rates from venting versus flaring of gas, failing to account for the standard industry practice of capturing methane in flowback water, and more. E.g., MARY LASHLEY BARCELLA ET AL., IHIS CERA, MISMEASURING METHANE: ESTIMATING GREENHOUSE GAS EMISSIONS FROM UPSTREAM NATURAL GAS DEVELOPMENT 9–10 (2011), available at http://www.cred.org/wpcontent/ uploads/2014/07/Mismeasuring-Methane-.pdf, archived at http://perma.cc/9Q9K-2FVS (criticizing the study’s misuse of well data and flawed methane emission estimates); cf. David A. Kirchgessner et al., Estimate of Methane Emissions from the U.S. Natural Gas Industry, 35 CHEMOSPHERE 1365, 1365–66 (1997) (noting the “poor quality of methane emissions estimates” in the oil and gas industry).
71. Compare Scot M. Miller et al., Anthropogenic Emissions of Methane in the United States, 110 PNAS 20018, 20018 (2013) (suggesting leakage rates higher than EPA estimates), and Gabrielle Pétron et al., Hydrocarbon Emissions Characterization in the Colorado Front Range—A Pilot Study, J. GEOPHYSICAL RES.: ATMOSPHERES, Feb. 2012, at 1, 17–18 (suggesting that existing estimates of fugitive methane emissions from gas operations are underestimates and that the real percentage of total methane emissions caused by gas operations is closer to 30%), with David T. Allen et al., Measurements of Methane Emissions at Natural Gas Production Sites in the United States, 110 PNAS 17768, 17768 (2013) (suggesting leakage rates lower than the EPA’s estimates). But see Michael Levi, Yellow Flags on a New Methane Study, COUNCIL ON FOREIGN REL. (Feb. 13, 2012), http://blogs.cfr.org/levi/2012/02/13/yellow-flags-on-a-new-methane-study, archived at http://perma.cc/A7DC-PGHD (identifying methodological problems with the Pétron study). Recently, the National Oceanic and Atmospheric Administration group announced results from a study of methane emissions in Utah that are consistent with the Howarth et al., supra note 73, data. Jeff Tollefson, Methane Leaks Erode Green Credentials of Natural Gas, NATURE, Jan. 3, 2013, at 12, 12. For a discussion of the EPA’s calculations, see generally KELSI BRACMORT ET AL., CONG. RESEARCH SERV., 7-5700, METHANE CAPTURE: OPTIONS FOR GREENHOUSE GAS EMISSION REDUCTION 7 (2011) and Ramón A. Alvarez et al., Greater Focus Needed on Methane Leakage from Natural Gas Infrastructure, 109 PNAS 6435 (2012). The EPA’s calculations were compiled from information obtained in the U.S. Greenhouse Gas Inventory Report. U.S. ENVTL. PROT. AGENCY, EPA 430-R-14-003, INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKS: 1990–2012 (2014).
72. A.R. Brandt et al., Methane Leaks from American Natural Gas Systems, 343 SCIENCE 733, 735 (2014).
73. Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews, 77 Fed. Reg. 49,490 (Aug. 16, 2012) (to be codified at 40 C.F.R. pts. 60, 63); see also EPA to Regulate Air Emissions from Hydraulic Fracturing as Industry Comes Under Scrutiny, MARTEN L. (May 29, 2012), http://www.martenlaw.com/newsletter/20120529-air-emissions-from-hydraulic-fracturing, archived at http://perma.cc/7RNZ-TNH5 (discussing the EPA’s new regulations in detail).
74. See MCGRAW, supra note 43, at 96–97 (describing the transformation of a “quiet mountain scene” into “an industrial site, crammed with equipment and men and thundering with the deafening roar of drills and generators and trucks”).
75. See Jim Efstathiou Jr., Taxpayers Pay ss Fracking Trucks Overwhelm Rural Cow Paths, BLOOMBERG (May 15, 2012, 11:19 AM), http://www.bloomberg.com/news/2012-05- 15/taxpayers-pay-as-fracking-trucks-overwhelm-rural-cow-paths-1-.html, archived at http://perma.cc/GB4M-USFR (describing how officials in various states are considering how to fix the road damage caused by the increased traffic of the fracking trucks). In Texas’s Eagle Ford Shale, one county spent 90% of its 2013 budget on road repair, administration, and public safety. Ann Choi & Michael Marks, Eagle Ford Windfall Goes to Fix What the Boom Broke, AUSTIN AM.- STATESMAN, Feb. 22, 2014, http://www.statesman.com/news/news/eagle-ford-windfall-goes-tofix- what-the-boom-brok/ndYjw/, archived at http://perma.cc/ASR9-CG9W.
76. See MCGRAW, supra note 43, at 79–85 (recounting how some residents of the Marcellus Shale in Pennsylvania are reaping great rewards from shale gas production, while others gain nothing because they do not own either property or businesses that benefit from the shale boom); Choi & Marks, supra note 79 (quoting a teacher in the Eagle Ford Shale region of Texas: “I have rental property so I am benefiting from the boom, but for other people, the only change they see are roads getting more dangerous”); North Dakota Boomtown Suffers Growing Pains Trying to Keep Up with Demand, PBS NEWSHOUR (Aug. 7, 2012, 12:00 AM), http://www.pbs.org/news hour/bb/business-july-dec12-boomtown_08-07/, archived at http://perma.cc/4WDR-NP6A (stating that the cost of managing a small town increased by almost $3 million due to nearby fracking activities and residents are frustrated that “[t]here’s not enough anything”); cf. Deon Daugherty, A Look Inside an Eagle Ford Boomtown—and its Traffic, HOUS. BUS. J., Oct. 28, 2011, http://www.bizjournals.com/houston/blog/2011/10/a-look-inside-an-eagle-ford-boomtown--.html?page=all, archived at http://perma.cc/P65D-WUZU (“Workers at a standard 40-person fracking site with a high school education can command as much as $2,000 per week.”).
77. The cleared land is eventually reclaimed but for the piping at the wellhead. Seamus McGraw describes the recovery process from the perspective of a local resident in a rural portion of the Marcellus Shale: “Sooner or later [drilling and fracking] would be finished. Yes, the land would be altered... but the land has a way of camouflaging such things.... [And] of reclaiming what is taken from it.” MCGRAW, supra note 43, at 130.
78. Robert Cheren has calculated the percentage of land covered by local bans in the Marcellus Shale states, finding it to be more than 16% in New York but a very small percentage elsewhere. Robert D. Cheren, Fracking Bans, Taxation, and Environmental Policy, 64 CASE W. RES. L. REV. (forthcoming 2014) (manuscript at 8–9 & tbl.1), available at http://ssrn.com/abstra ct=2370534, archived at http://perma.cc/Y5AY-W8BY.
79. For a brief history of the early proration orders issued by the Texas and Oklahoma commissions, see generally STEPHEN L. MCDONALD, PETROLEUM CONSERVATION IN THE UNITED STATES: AN ECONOMIC ANALYSIS 36–38 (1971).
80. 2013 Oil and Gas Annual Report, PA. DEPARTMENT ENVTL. PROTECTION OFF. OIL & GAS MGMT., http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-100389/2013%20Oil%20 and%20Gas%20Annual%20Report%20with%20cover.pdf, archived at http://perma.cc/TKT8- UDE3; About Us, ODNR DIVISION MIN. RESOURCES, http://minerals.ohiodnr.gov/contacts-aboutus/ about-us, archived at http://perma.cc/46YR-LJ7C; Division of Mineral Resource Mission, DEPARTMENT ENVTL. CONSERVATION, http://www.dec.ny.gov/about/636.html, archived at http://perma.cc/MUD7-G9VM; Office of Oil and Gas, W. VA. DEPARTMENT OF ENVTL. PROTECTION, http://www.dep.wv.gov/oil-and-gas/Pages/default.aspx, archived at http://perma.cc/ AG8Z-J9J2. For a good discussion of the state commissions’ various approaches to regulation, see generally Richard J. Pierce, Jr., State Regulation of Natural Gas in a Federally Deregulated Market: The Tragedy of the Commons Revisited, 73 CORNELL L. REV. 15, 30–52 (1987).
81. For a discussion of the scope of these exemptions, see David B. Spence, Federalism, Regulatory Lags, and the Political Economy of Energy Production, 161 U. PA. L. REV. 431, 449– 52 (2013) and Hannah Wiseman, Untested Waters: The Rise of Hydraulic Fracturing in Oil and Gas Production and the Need to Revisit Regulation, 20 FORDHAM ENVTL. L. REV. 115, 142–46 (2009).
82. See RICHARDSON ET AL., supra note 45, at 22–23 (summarizing the regulatory responses of states and municipalities implemented at various stages of the fracking process); Christopher S. Kulander, Shale Oil and Gas State Regulatory Issues and Trends, 63 CASE W. RES. L. REV. 1101, 1111–40 (2013) (detailing recent legislative developments related to fracking in six states); Wiseman, supra note 85, at 157–67 (describing a range of state regulatory options for numerous fracking activities).
83. See RICHARDSON ET AL., supra note 45, at 23 & nn.20–27 (summarizing recent state regulatory changes related to shale oil and gas production). Pennsylvania amended its code several times to address fracking issues, most recently with the enactment of “Act 13,” 58 PA. STAT. ANN. §§ 2301–3504 (West Supp. 2014), parts of which were struck down by Pennsylvania’s highest court in January 2013, Robinson Twp. v. Pennsylvania, 83 A.3d 901, 913 (Pa. 2013). See infra notes 114–15 and accompanying text. Texas enacted legislation in 2011 to require disclosure of fracking fluid constituents and address water quality issues. TEX. NAT. RES. CODE ANN. § 91.851 (West 2011 & Supp. 2014). Ohio revised its oil and gas code to address fracking issues in 2010 and again in 2012. Kulander, supra note 86, at 1119, 1122. For a detailed description of the new Ohio and Texas rules, see id. at 1119–25, 1129–36. By the governor’s executive order, Maryland is studying fracking before formulating new rules. 38 Md. Reg. 782 (July 1, 2011). Michigan’s legislature recently considered additional rules for water withdrawals to accommodate new fracking projects. H.R. 4899–4906, 97th Leg., Reg. Sess. (Mich. 2013). The State’s Department of Environmental Quality has proposed several rule changes that are now awaiting approval. Oil and Gas Operations, Dep’t of Envt’l Quality, R.324.201–.1406 (proposed Nov. 1, 2013), available at http://www7.dleg.state.mi.us/orr/Files/ORR/1298_2013-101EQ_orrdraft. pdf, archived at http://perma.cc/D9G8-A275. North Carolina’s governor signed a permanent moratorium on fracking permits until regulations and a permitting process are developed and approved. Act of July 29, 2013, pt. 1, § 1.(c), 2013 N.C. Sess. Laws 2013-365.
84. In 2013, California passed regulations involving increased regulation and notice provisions for fracking, which will go into effect by January 2015. 2013 Cal. Stat. 2525 (codified at. CAL. WATER CODE § 10783 and scattered sections of the CAL. PUB. RES. CODE). In November 2013, Illinois enacted Public Act 098-0022, or the Hydraulic Fracturing Regulatory Act, which created various feeds, permits, and restrictions to the process. Hydraulic Fracturing Regulatory Act, 2013 Ill. Laws 22 (codified at 225 ILL. COMP. STAT. 732).
85. See RICHARDSON ET AL., supra note 45, at 24, 32, 40, 43.
86. For some recent doctrinal analyses of state–local preemption jurisprudence, see generally Paul Diller, Intrastate Preemption, 87 B.U. L. REV. 1113 (2007); Blake Hudson & Jonathan Rosenbloom, Uncommon Approaches to Common Problems: Nested Governance Commons and Climate Change, 64 HASTINGS L.J. 1273 (2013); and Jay P. Syverson, Note, The Inconsistent State of Municipal Home Rule in Iowa, 57 DRAKE L. REV. 263 (2008).
87. Syverson, supra note 90, at 266. The rule is named after 19th century Iowa Judge Forest Dillon, who enunciated the rule in the case of Clinton v. Cedar Rapids & Mo. River R. R. Co., 24 Iowa 455, 475 (1868).
88. For an extended discussion of home rule in the energy context, see Jarit C. Polley, Comment, Uncertainty for the Energy Industry: A Fractured Look at Home Rule, 34 ENERGY L.J. 261 (2013). For a survey of home rule in the United States, see generally Kenneth E. Vanlandingham, Municipal Home Rule in the United States, 10WM. &MARY L. REV. 269 (1968).
89. See, e.g., Cipollone v. Liggett Grp., 505 U.S. 504, 516 (1992).
90. For a discussion of the distinction between constitutional and legislative home rule, see Polley, supra note 92, at 268, 272–85.
91. See, for example, the Ohio home rule provision, which requires that home rule powers not conflict with the state’s general laws. OHIO CONST. art. XVIII, § 7. Similarly, the New York home rule provision grants home rule municipalities the power to adopt “local laws not inconsistent with the provisions of any general law....” N.Y. CONST. art. IX, § 2(c). This is also true of the Texas home rule provision. TEX. CONST. art. 11, § 5.
92. See Vanlandingham, supra note 92, at 279–81 (noting the somewhat imprecise legal meaning of home rule).
93. The Louisiana statute says that if a person has a state permit to drill, the permit “shall be sufficient authorization to the holder of the permit to... drill in search of minerals.” LA. REV. STAT. ANN. § 30:28(f) (2007).
94. OHIO REV. CODE ANN. § 1509.02 (West 2013); State ex rel. Morrison v. Beck Energy Corp., 989 N.E.2d 85, 97–98 (Ohio Ct. App. 2013).
95. N.Y. ENVTL. CONSERV. LAW § 23-0303(2) (McKinney 2007); see also John R. Nolon & Steven E. Gavin, Hydrofracking: State Preemption, Local Power and Cooperative Governance, 63 CASE W. RES. L. REV. 995, 1013 (2013) (observing that the New York law “at first blush seems to preclude the regulation of hydrofracking under local land use authority”).
96. Wallach v. Town of Dryden, 16 N.E.3d 1188, 1195–98 (N.Y. App. Div. 2014). The decision affirmed similarly reasoned lower court decisions in In re Norse Energy Corp. v. Town of Dryden, 964 N.Y.S.2d 714, 719–23 (App. Div. 2013) and Cooperstown Holstein Corp. v. Town of Middlefield, 964 N.Y.S.2d 431, 432 (App. Div. 2013). The Court of Appeals decision relied in part on precedent finding that the state’s mining law, which the courts said contained a similar preemption provision, did not preempt local law. Wallach, 16 N.E.3d at 1195–97. For an argument that the mining case precedent is a weak one, see generally Gregory R. Nearpass & Robert J. Brenner, High Volume Hydraulic Fracturing and Home Rule: The Struggle for Control, 76 ALB. L. REV. 167, 184–90 (2013) and Jon A. Czas, Note, New York’s Hydraulic Problem: How the Dryden Court’s Failure to Apply State Preemption Illustrates the Need for New York to Reach a Decision Regarding Hydraulic Fracturing, 11 GEO. J. L. & PUB. POL’Y 627, 634–39 (2013). But see Michelle L. Kennedy, Essay, The Exercise of Local Control Over Gas Extraction, 22 FORDHAM ENVTL. L. REV. 375, 390–92 (2011) (supporting the New York court’s use of mining precedent). In a third and unreported New York case, Jeffrey v. Ryan, the trial court concluded that a local moratorium was preempted because the emergency condition that supposedly motivated the moratorium was mitigated by state regulation of oil and gas production. No. CA2012-001254, 2012 WL 4513348, at *7 (N.Y. Sup. Ct. Oct. 2, 2012).
97. Wallach, 16 N.E.3d at 1196–98. That court also rejected arguments that setback and spacing requirements in the state regime regulate well location and therefore preempt local well location regulation. Id. at 1201–02.
98. Several commentators have stressed the importance of this consideration. See, e.g., Robert H. Freilich & Neil M. Popowitz, Oil and Gas Fracking: State and Federal Regulation Does Not Preempt Needed Local Government Regulation: Examining the Santa Fe County Oil and Gas Plan and Ordinance as a Model, 44 URB. LAW. 533, 568–69 (2012) (stressing the need for local zoning to address impact fees and adequate public facilities critical to maintaining health, welfare, and quality of life); Nolon & Gavin, supra note 99, at 1016–36 (surveying cases suggesting that courts are reluctant to usurp local prerogatives in the absence of very explicit legislative intent); Nancy Perkins, The Fracturing of Place: The Regulation of Marcellus Shale Development and the Subordination of Local Experience, 23 FORDHAM ENVTL. L. REV. 44, 47 (2012) (“[L]oss of local control is an affront to a feminist understanding of sustainable development that is skeptical of science, embraces intersectionality and situatedness, and encourages coalition-building and solidarity.”).
99. But cf. Ne. Natural Energy, LLC v. City of Morgantown, No. 11-C-411, 2011 WL 3584376 (W. Va. Cir. Ct. Aug. 12, 2011) (finding that there was no statutory basis for allowing the city to regulate or prohibit fracking regardless of the fact that the city defined fracking as a nuisance).
100. Id. For an argument that the West Virginia court should have followed the reasoning of the New York and Pennsylvania courts, see generally Emery L. Lyon, Comment, Northeast Natural Energy, LLC v. City of Morgantown, 57 N.Y.L. SCH. L. REV. 971 (2013). Cf. Polley, supra note 92, at 272 (describing West Virginia’s adherence to Dillon’s Rule).
101. See supra note 101 and accompanying text.
102. See Polley, supra note 92, at 274–80 (surveying courts’ approaches to local fracking bans in various states); W. Devin Wagstaff, Student Essay, Fractured Pennsylvania: An Analysis of Hydraulic Fracturing, Municipal Ordinances, and the Pennsylvania Oil and Gas Act, 20 N.Y.U. ENVTL. L.J. 327, 338 (2013) (noting that most local ordinances in Pennsylvania do not ban fracking outright because bans likely “will not be defensible”). After the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth that assertion may no longer be true. See infra notes 115–19 and accompanying text.
103. Cf. David Giller, Implied Preemption and Its Effect on Local Hydrofracking Bans in New York, 21 J.L. & POL’Y 631, 657 (2013) (arguing that “local law is not preempted simply because it prohibits an activity that is allowed under state law”).
104. Czas, supra note 100, at 641 (contending that by putting some production areas off limits, local bans undermine the statutory objective of promoting efficient exploitation of resources).
105. Colo. Oil & Gas Ass’n v. City of Fort Collins, No. 13CV31385, slip op. at 9 (Colo. Dist. Ct. Aug. 7, 2014); Colo. Oil & Gas Ass’n v. City of Longmont, No. 13CV63, slip op. at 16–17 (Colo. Dist. Ct. July 24, 2014). Both courts relied in part on Voss v. Lundvall Bros., which articulated a per se rule that municipal bans are preempted. 830 P.2d 1061, 1068 (Colo. 1992).
106. Colo. Oil & Gas Ass’n v. City of Longmont, No. 13CV63, slip op. at 14–17 (Colo. Dist. Ct. July 24, 2014).
107. Colo. Oil & Gas Ass’n v. City of Fort Collins, No. 13CV31385, slip op. at 9 (Colo. Dist. Ct. Aug. 7, 2014).
108. See supra text accompanying notes 99–101. However, in Jeffrey v. Ryan, the court concluded that the state oil and gas statute preempted a local two-year moratorium. No. CA2012- 001254, 2012 WL 4513348, at *5–7 (N.Y. Sup. Ct. Oct. 2, 2012). A federal court applying Pennsylvania law in 2009 concluded that there is a conflict when the local ordinance “forbids what [the state statute] permits” because a flat out prohibition “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of [the statute].” Range Resources-Appalachia, LLC v. Blaine Twp., No. 09-355, 2009 WL 3515845, at *8–9 (W.D. Pa. Oct. 29, 2009). The Pennsylvania statute has been struck down on other grounds, but the relatively recent prior case law illustrates the difficulty courts have with these local preemption questions. See infra note 115 and accompanying text.
109. The Pennsylvania statute superseded “all local ordinances and enactments purporting to regulate oil and gas well operations regulated by this act.” 58 PA. STAT. ANN. § 601.602 (West 1996). As with the New York decisions, the Pennsylvania courts interpreted this language to exclude regulation of the location of wells, including ordinances that ban drilling throughout the town. See Huntley & Huntley, Inc. v. Borough Council, 964 A.2d 855, 864, 869 (Pa. 2009) (upholding a ban on drilling within the borough); Penneco Oil Co. v. Cnty. of Fayette, 4 A.3d 722, 733 (Pa. Commw. Ct. 2010) (upholding an ordinance that regulated the location of wells, but did not ban them). But cf. Range Resources-Appalachia, LLC v. Salem Twp., 964 A.2d 869, 877 (Pa. 2009) (overturning a local ordinance regulating oil and gas land development on field preemption grounds); Blaine Twp., 2009 WL 3515845, at *8 (holding that a city’s disclosure ordinance was preempted because it “forbids what the Oil and Gas Act permits”).
110. See supra note 87. Chapter 33 of the law would prohibit any local regulation of oil and gas operations and would require statewide uniformity among local zoning ordinances governing oil and gas activities. 58 PA. STAT. ANN. §§ 3301–3309 (West Supp. 2014).
111. Robinson Twp. v. Commonwealth, 83 A.3d 901, 913 (Pa. 2013).
112. PA. CONST. art. I, § 27; Robinson Twp., 8h3 A.3d at 913.
113. The court explained: Specifically, ours is a government in which the people have delegated general powers to the General Assembly, but with the express exception of certain fundamental rights reserved to the people in Article I of our Constitution.... Accordingly, Article I... is not a discrete textual source of police power delegated to the General Assembly by the people pursuant to which legislation is enacted. Robinson Twp., 83 A.3d at 947 (citations omitted).
114. Id. at 974.
115. The Robinson Township court notes that no other shale-producing state (indeed, no other state) enshrines popular environmental rights in their constitution as firmly distinct from legislative power, as does Pennsylvania. Id. at 962–63. However, other states do enshrine certain environmental rights into their constitutions, and some of them may yet become shale oil and gas producers. For a summary of these provisions, see Barton H. Thompson, Jr., Constitutionalizing the Environment: The History and Future of Montana’s Environmental Provisions, 64 MONT. L. REV. 157, 160–65 (2003).
116. Brief of Appellant, State ex rel. Morrison v. Beck Energy Corp., No. 2013-0465 (filed Sept. 8, 2013).
117. Plaintiffs in Longmont have already indicated their intent to appeal the Boulder County District Court decision. Juan Carlos Rodriguez, Enviros Take Fracking Ban Fight to Colo. Appeals Court, LAW360 (Sept. 11, 2014, 4:01 PM) http://www.law360.com/environmental/arti cles/576276/enviros-take-fracking-ban-fight-to-colo-appeals-court, archived at http://perma.cc/C Q69-DW8P.
118. Jim Malewitz, First Lawsuits Filed over Denton’s New Fracking Ban, TEX. TRIB. (Nov. 5, 2014), http://www.texastribune.org/2014/11/05/denton-fracking-ban-sees-first-lawsuit/, archived at http://perma.cc/YKS9-657E.
119. See Sharon Bernstein, California Law to Regulate Fracking Signed by Governor, REUTERS, Sept. 20, 2013, http://www.reuters.com/article/2013/09/21/us-usa-california-frackingidUSBRE98K00C20130921, archived at http://perma.cc/FR4G-FP7W (reporting that the “hotly contested bill drew strong opposition from many environmentalists”).
120. See supra note 83 and accompanying text.
121. In the federal preemption literature, this is just one of several policy-neutral ways of addressing the problem. Perhaps most prominent is the idea of “dynamic federalism,” which stresses the value of overlapping state and federal jurisdiction. See generally William W. Buzbee, Essay, Contextual Environmental Federalism, 14 N.Y.U. ENVTL. L.J. 108 (2005) (arguing in support of “regulatory overlap” between state and federal environmental law); Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243 (2005) (“Federalism... achieves its goals not through the separation of state and national power, but through their interaction.”).
122. See, e.g., Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL’Y REV. 23, 25 (1996) (describing the development of the matching principle and describing its development as a means of determining the efficiency of environmental regulations); William N. Eskridge, Jr. & John Ferejohn, The Elastic Commerce Clause: A Political Theory of American Federalism, 47 VAND. L. REV. 1355, 1363–64 (1994) (addressing the efficiency of state and local distribution of power in redistribution policies); Wallace E. Oates, Thinking About Environmental Federalism, RESOURCES, Winter 1998, at 14 (“[T]he central idea emerging from the literature in public economics is that the responsibility for providing a particular public service should be assigned to the smallest jurisdiction whose geographical scope encompasses the relevant benefits and costs associated with the provision of the service.”).
123. Butler & Macey, supra note 126, at 25. This analysis is not intended to be an application of the so-called “Tiebout Model,” which assumes that people are costlessly able to move between jurisdictions in order to find the jurisdiction that balances economic and social net benefits in ways that are to their liking. See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 418 (1956) (“[T]he consumer-voter moves to that community whose local government best satisfies his set of preferences.”). Rather, per Oates, supra note 126, I am employing the matching principle as a useful starting point for determining the level of government at which decisions involving externalities ought to be made.
124. See Spence, supra note 85, at 492–93 (concluding that states subsume most of the impacts of shale gas production, and that existing federal authority addresses those that spill across state lines). But cf. Michael Burger, Fracking and Federalism Choice, 161 U. PA. REV. ONLINE 150, 153 (2013) (arguing that “fracking gives rise to interstate, and even national, problems that must be addressed accordingly”).
125. This assumption is consistent with the literature on NIMBY (not in my backyard) movements, which documents the correlation between income and opposition to locally unwanted land uses. See, e.g., EDWARD J. WALSH ET AL., DON’T BURN IT HERE: GRASSROOTS CHALLENGES TO TRASH INCINERATORS 131 (1997) (indicating that companies utilize income level as one factor for determining where to place trash incinerators); Carol Mansfield et al., The Efficiency of Political Mechanisms for Siting Nuisance Facilities: Are Opponents More Likely to Participate than Supporters?, 22 J. REAL ESTATE FIN. & ECON. 141, 156 (2001) (finding that individuals with higher income and education levels are more likely to oppose undesirable landuse developments). Of course, the rural poor may sometimes oppose fracking based on the desire to preserve a quiet way of life or for other reasons; similarly, rich urbanites (and suburbanites) may sometimes decide that they can tolerate the disruptions associated with fracking in order to reap the financial rewards. For a comparison of income levels in New York State jurisdictions with pro- and anti-fracking ordinances, see infra note 156.
126. See supra notes 38–44 and accompanying text.
127. See supra notes 63–68 and accompanying text.
128. Cf. ZUCKERMAN, supra note 43, at 358–59 (describing the career trajectory of a man and woman who moved from Oregon to the Bakken Shale in North Dakota to work, a story that ended with their return to Oregon after earning opportunities shrunk and housing costs grew).
129. GOVERNOR’S MARCELLUS SHALE ADVISORY COMMISSION REPORT 88–89 (2011), http://files.dep.state.pa.us/PublicParticipation/MarcellusShaleAdvisoryCommission/MarcellusShal eAdvisoryPortalFiles/MSAC_Final_Report.pdf, archived at http://perma.cc/P44L-KTCU.
130. Choi & Marks, supra note 79.
131. TIMOTHY J. CONSIDINE ET AL., THE PENNSYLVANIA MARCELLUS NATURAL GAS INDUSTRY: STATUS, ECONOMIC IMPACTS AND FUTURE POTENTIAL 2 (2011), available at http://marcelluscoalition.org/wp-content/uploads/2011/07/Final-2011-PA-Marcellus-Economic- Impacts.pdf, archived at http://perma.cc/WD3M-4ULP?type=pdf.
132. PAUL FERREE & PETER W. SMITH, BUREAU OF LABOR STATISTICS, EMPLOYMENT AND WAGE CHANGES IN OIL-PRODUCING COUNTIES IN THE BAKKEN FORMATION, 2007–2011, at 2 (2013), available at http://www.bls.gov/opub/btn/volume-2/employment-wages-bakken-shaleregion. htm, archived at http://perma.cc/UUH6-8LAR.
133. Blaire Briody, 11 Shocking Facts About the North Dakota Oil Boom, FISCAL TIMES (June 6, 2013), http://www.thefiscaltimes.com/Articles/2013/06/06/11-Shocking-Facts-about-the- North-Dakota-Oil-Boom, archived at http://perma.cc/M4L-ZSGQ.
134. Press Release, Bureau of Labor Statistics, U.S. Dep’t of Labor, Regional and State Employment and Unemployment—April 2013 (May 17, 2013), available at http://www.bls.gov/ news.release/archives/laus_05172013.pdf, archived at http://perma.cc/WF5K-RG4Y; Briody, supra note 137.
135. Robert W. Gilmer et al., Oil Boom in Eagle Ford Shale Brings New Wealth to South Texas, SOUTHWEST ECON., Second Quarter 2012, at 3, 6, available at http://www.dallasfed.org/as sets/documents/research/swe/2012/swe1202b.pdf, archived at http://perma.cc/5RLB-XGHH?type =pdf.
136. According to one estimate, shale gas production in the Marcellus region has lowered energy costs by 13%. Naureen S. Malik, Marcellus Gas Cuts Price Premiums to Decade Lows, WORCHESTER TELEGRAM & GAZETTE, June 21, 2012, http://www.telegram.com/article/201206 21/NEWS/106219795/1002, archived at http://perma.cc/XQ8T-CMSW.
137. According to PricewaterhouseCoopers, inexpensive shale gas could increase manufacturing employment in the United States by 1 million workers by 2025. Shale Gas: A Renaissance in US Manufacturing?, PRICEWATERHOUSECOOPERS 1 (Dec. 2011), http://www.pwc.com/en_US/us/industrial-products/assets/pwc-shale-gas-us-manufacturing-renaissance.pdf, archived at http://perma.cc/XW7S-SHKW; see also Bullis, supra note 14 (discussing the positive impact the shale gas boom will have on the U.S. manufacturing economy).
138. CONSIDINE ET AL., supra note 135, at iv.
139. Larry Oakes, North Dakota’s Great Oil Rush, STAR TRIB., Oct. 17, 2011, http://www.startribune.com/local/131923403.html, archived at http://perma.cc/VUJ2-4KP9.
140. Cheren, supra note 82 (manuscript at 2).
141. See supra text accompanying notes 73–77.
142. Since 2005, coal’s market share of electricity production has fallen, while that of natural gas has risen. U.S. ENERGY INFO. ADMIN., ANNUAL ENERGY OUTLOOK 2014: WITH PROJECTIONS TO 2040, at ES-4 fig.ES-5 (2014), available at http://www.eia.gov/forecasts/aeo/pdf/ 0383(2014).pdf, archived at http://perma.cc/3D5S-VP9N. The U.S. Energy Information Administration predicts that by 2035, natural gas will have completely outpaced coal as the leading electricity-producing fuel, though low coal prices have decreased the strength of the trend recently. Id. at ES-4.
143. See Paul R. Epstein et al., Full Cost Accounting for the Life Cycle of Coal, 1219 ANNALS N.Y. ACAD. SCI. 73, 76, 93 (2011) (estimating that over the full lifecycle of coal, coal-related externalities, including harms to public health and even death, could cost the American public as much as half a trillion dollars each year); Nicholas Z. Muller et al., Environmental Accounting for Pollution in the United States Economy, 101 AM. ECON. REV. 1649, 1667–69 & tbl.4 (2011) (placing the non-GHG environmental costs of coal combustion, including mortality-related risks, at more than $50 billion, and the increase in electricity prices from internalizing those costs at 2.8 cents per kwh); Press Release, Nat’l Acads., Report Examines Hidden Health and Environmental Costs of Energy Production and Consumption in U.S. (Oct. 19, 2009), available at http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12794, archived at http://perma.cc/S5E9-YM53 (estimating the annual non-climate related external damages, including damages to human health, from 406 coal-fired power plants to be $62 billion, or about 3.2 cents per kwh).
144. Indeed, a strict application of the Tiebout model illustrates that point. The model assumes that in the long run, people are perfectly mobile, and can move freely between local jurisdictions, enabling us to therefore apply the matching principle straightforwardly. Tiebout, supra note 127, at 419.
145. This is a familiar problem in the federalism literature. Mismatch problems exist whenever the distribution of costs and impacts is imperfect, even when all costs and benefits remain within a single jurisdiction. See Daniel E. Ingberman, Siting Noxious Facilities: Are Markets Efficient?, 29 J. ENVTL. ECON. & MGT. S-20, S-21 to -25 (1995) (explaining that if impacts are concentrated on those closest to the noxious facility, a majority of voters within that boundary will suffer less-than-average impacts).
146. Tiebout, supra note 127, at 424 (“If consumer-voters are fully mobile, the appropriate local governments, whose revenue-expenditure patterns are set, are adopted by the consumervoter.”).
147. This is the problem of asset specificity, and others have raised this objection to the Tiebout model in the context of takings claims. See infra note 257 and accompanying text.
148. That is, those who will not die prematurely because of reduced exposure to the harmful by-products of coal mining, processing, and combustion will never know that they benefited in this way. Even if the beneficiaries of reduced reliance on coal could identify themselves, they are too diffuse and disinterested to organize and press their positions on state or local policy makers in shale oil and gas producing regions. For a more detailed analysis of this point, see David B. Spence, Backyard Politics, National Policies: Understanding the Opportunity Costs of National Fracking Bans, 30 YALE J. ON REG. ONLINE 30, 37–38 (2013).
149. For groups representing both local and national environmental interests, see Don’t Get Fracked!, supra note 27 and Moving Beyond Coal in Wisconsin - The Promise of Great Lakes Wind, BEYOND COAL, SIERRA CLUB (Nov. 25, 2012), http://content.sierraclub.org/coal/update/25- nov-2012/moving-wisconsin-promise-great-lakes-wind, archived at http://perma.cc/BD4UPLCM.
150. There is a large and diverse literature supporting this conclusion and a substantial literature disputing it as well. Perhaps the most famous work in this canon is Mancur Olson’s The Logic of Collective Action, which argues that broader mass interests are less effective than business interests in the group pressure game. MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 58, 127–28 (1965). For a more recent treatment of this issue, see generally KAY L. SCHLOZMAN, Who Sings in the Heavenly Chorus?: The Shape of the Organized Interest System, in THE OXFORD HANDBOOK OF AMERICAN POLITICAL PARTIES AND INTEREST GROUPS 425 (L. Sandy Maisel & Jeffrey M. Berry eds., 2010).
151. For explanations and applications of the idea that salience trumps organizational advantages, see generally Anthony Downs, Up and Down with Ecology—The “Issue-Attention Cycle,” PUB. INT., Summer 1972, at 38; Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. ECON. & ORG. 59 (1992); and James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. PA. L. REV. 287 (1990).
152. See, e.g., Broomfield Passes Fracking Ban While Pro-Fracking Groups Sue, HUFFINGTON POST (Dec. 4, 2013, 4:43 PM), http://www.huffingtonpost.com/2013/12/04/colora do-anti-fracking-broomfield_n_4385210.html, archived at http://perma.cc/87DW-E68D (reporting on the contentious passage of a five-year fracking moratorium by a Denver suburb); Freeman Klopott, New York Decision on Fracking Regulations Delayed, BLOOMBERG (Jan. 29, 2014, 2:41 PM), http://www.bloomberg.com/news/2014-01-29/new-york-decision-on-fracking-regulationsdelayed. html, archived at http://perma.cc/D6MG-UZL3 (describing calls for Governor Cuomo to make a quicker decision on whether to pass or ban fracking); supra notes 28–30 and accompanying text.
153. Accordingly, in New York State’s southern tier counties, sparsely populated by struggling farmers, many local government units have enacted pro-fracking ordinances. See supra note 29. Elsewhere in New York, where opponents of development outnumber supporters, antifracking ordinances are more common. Fracking Bans and Moratoria in NY: Movements Against HVHF, FRACTRACKER ALLIANCE, http://www.fractracker.org/map/ny-moratoria/, archived at http://perma.cc/D2ER-3MSV.
154. Indeed, this is one issue in which businesses may enjoy more of an advantage at the state level if we assume that fracking is less salient to the average voter in state elections than the average voter in local elections. Some commentators explain the strong preemption provisions of Pennsylvania’s now-overturned Act 13 as the product of business influence over the state legislature. See, e.g., Tide of Public Opinion Has Turned Against Fracking - 2/3 of PA Citizens Support a Moratorium, W. OHIO FRACKING AWARENESS COALITION (Jan. 2, 2014), http://www.wofac.org/2014/01/tide-of-public-opinion-has-turned.html, archived at http://perma.c c/4HCA-QYEL (alleging that Act 13 was a “gift bag for the frackers” and that government was choosing “the side of oil and gas company profits over public safety”).
155. See Vanlandingham, supra note 92, at 270 (including among the reasons for adopting home rule the desire to decrease state interference in cities’ “internal affairs” and to allow local governments to manage “peculiarly local problems”). More generally, the home rule movement was part of the good government response to party rule in the late 19th century Populist movement and early 20th century Progressive movement. However, part of that impulse included the desire to stop state legislatures from “meddl[ing] in purely local affairs.” FRANK MANN STEWART, A HALF CENTURY OF MUNICIPAL REFORM: THE HISTORY OF THE NATIONAL MUNICIPAL LEAGUE 38 (1950).
156. For accusations that Pennylvania’s recently overturned Act 13 was written by business interests, see supra note 158. The idea here is that state legislators outside the producing regions will care more about interest group pressure because their constituents are not activated about the issue the way voters in the producing regions are. Interestingly, one could also argue that federal policy making is less susceptible to capture than state policy making because more public attention is paid to the former than the latter.
157. See Richard B. Stewart, Pyramids of Sacrifice?: Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1212 (1977) (explaining the race to the bottom as influenced by communities’ reasonable “fear that the resulting environmental gains will be more than offset by movement of capital to other areas with lower standards”). For commentary on this hypothesis, see generally Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL’Y REV. 23, 31 (1996) and Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the “Race-to-the-Bottom” Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992). But cf. Kirsten H. Engel, State Environmental Standard-Setting: Is There a “Race” and Is It “To the Bottom”?, 48 HASTINGS L.J. 271, 278 (1997) (advancing the race-to-the-bottom in support of an argument favoring federal environmental regulation); Joshua D. Sarnoff, The Continuing Imperative (but Only from a National Perspective) for Federal Environmental Protection, 7 DUKE ENVTL. L. & POL’Y F. 225, 318 (1997) (arguing that “it defies credulity to believe [states] will achieve the goals on their own” given states’ inability to achieve environmental goals both before and after passage of the major federal environmental laws).
158. The only way in which local jurisdictions could “lose out” later by failing to permit shale oil or gas production now is tied to changes in the price of oil or gas. If the price falls precipitously, as it can at the end of a boom cycle, then those property owners, businesses, and tax collectors whose jurisdictions permitted production before the price fell will make more in royalties, secondary economic effects, and tax revenue, respectively, than jurisdictions that proceeded more cautiously. Natural gas prices are set nationally (and regionally), while oil prices are set globally. STEVEN LEVINE ET AL., AM. PETROLEUM INST., UNDERSTANDING NATURAL GAS MARKETS 15 (2014); MICHAEL RATNER ET AL., CONG. RESEARCH SERV., R42074, U.S. NATURAL GAS EXPORTS: NEW OPPORTUNITIES, UNCERTAIN OUTCOMES 5 (2013). Thus, for example, the economic benefit of production in 2006 in the Barnett, Haynesville, and Marcellus Shales was greater, per unit of energy produced, than production in 2012 because the 2006 price of gas was several times the 2012 price. See Henry Hub Natural Gas Spot Price, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/dnav/ng/hist/rngwhhdA.htm, archived at http://perma.cc/9Z4 E-DPN5 (stating that the U.S. price of natural gas was $8.69/mmBtu in January 2006 and $2.67/mmBtu in January 2012). By comparison, production of shale oil in North Dakota’s Bakken Shale or Texas’s Eagle Ford Shale is more profitable now, per unit of energy produced, than it was in 2006 because the price of oil is slightly higher now than it was then. See Cushing, OK WTI Spot Price, FOB, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/dnav/pet/hist/LeafHan dler.ashx?n=PET&s=RWTC&f=D, archived at http://perma.cc/CK3L-5M2Q (demonstrating that the U.S. price of West Texas Intermediate crude oil, the main index crude, hovered between $60/bbl and $70/bbl during most of 2006, but was about $82/bbl at the time of this writing).
159. Nicholas Z. Muller, Robert Mendelsohn, and William Nordhaus conclude that the net benefits of natural gas production are positive, but their 2011 analysis does not attempt to incorporate or evaluate the literature addressing the air and climate impacts of fracking discussed in subpart II(B). Muller et al., supra note 147, at 1669–71.
160. See ERICA BROWN ET AL., CTR. FOR LOCAL, STATE & URBAN POLICY, PUBLIC OPINION ON FRACKING: PERSPECTIVES FROM MICHIGAN AND PENNSYLVANIA 10 tbl.7 (2013), available at http://closup.umich.edu/files/nsee-fracking-fall-2012.pdf, archived at http://perma.cc/V9PZ- 7YZN (finding that a majority of residents in Michigan and Pennsylvania believe that the industry brings more benefits than costs to their state); TEX. RESEARCH INST., TEXAS STATEWIDE SURVEY 16 (2014), available at http://s3.amazonaws.com/static.texastribune.org/media/documents/utttpoll- 201402-fullsummary.pdf, archived at http://perma.cc/Z63A-REFP (finding that 49% of Texans surveyed believe the benefits of fracking outweigh the costs); Poll: Majority in Pa. Support Gas Drilling, WASH. TIMES, Jan. 30, 2014, http://www.washingtontimes.com/news/2014/jan/30/pollmajority- in-pa-support-gas-drilling/, archived at http://perma.cc/L4F4-WSYK (reporting that 64% of Pennsylvanians polled support drilling in the Marcellus Shale); Press Release, Robert Morris Univ. Polling Inst., Fracking Sees Support in New National Poll by RMU (Nov. 18, 2013), available at http://www.rmu.edu/PollingInstitute/Fracing, archived at http://perma.cc/X5XMBQAG (concluding that among those with an opinion on fracking, a national majority supports the practice). But cf. Press Release, Quinnipiac Univ., Little Love for Recreational Marijuana in New York, Quinnipiac University Poll Finds; Opposition to Fracking Inches Up (Aug. 22, 2014), available at http://www.quinnipiac.edu/images/polling/ny/ny08222014_ncke582m.pdf, archived at http://perma.cc/WF-K8LE (finding that 48% of New Yorkers do not support fracking in their state, while 43% do).
161. Kevin Begos & Mary Esch, Fracking Surveys Find Support in Unexpected Places, YAHOO! NEWS (Dec. 9, 2012, 11:47 AM), http://news.yahoo.com/fracking-surveys-supportunexpected- places-164308887.html, archived at http://perma.cc/7KFG-Y3K8?type=image. But see Press Release, Quinnipiac Univ., supra note 164 (finding greater support for fracking in upstate New York).
162. These polling data tend to belie claims by litigants in preemption cases that state regulation is not “democratic” because state oil and gas regulators are not elected while local government leaders are. See, e.g., Brief of Amici Curiae Professors Vicki Been et al. at 6, 9–10, Norse Energy Corp. v. Dryden, 964 N.Y.S.2d 714 (App. Div. 2013) (No. 515227) (“If the state legislature has expressed no clear view on some local law, then judicial preemption of such a law under the aegis of the ambiguous state statute deprives local voters of the benefits of local democracy without advancing any democratically ratified policy of state lawmakers.”).
163. In the words of economist Anthony Downs, voters are rationally ignorant, since they lack the time, resources, and inclination to become fully informed on most issues. See ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 259 (1957) (“[I]t is irrational to be politically well-informed because the low returns from data simply do not justify their cost in time and other scarce resources.”).
164. Of course, British philosopher and peer Edmund Burke articulated this model of representation, which bears his name. It emphasizes that the elected representative is a trustee, making decisions on behalf of constituents, rather than acting on their specific instructions. 3 EDMUND BURKE, Speech at the Conclusion of the Poll, in THE WRITINGS AND SPEECHES OF EDMUND BURKE 63, 68–70 (W.M. Elofson & John A. Woods eds., 1996).
165. Wiseman, supra note 85, at 168.
166. For an explanation of the psychological and cultural roots of these centrifugal forces at work in the debate over shale oil and gas production, see generally David B. Spence, Responsible Shale Gas Production: Moral Outrage vs. Cool Analysis, 25 FORDHAM ENVTL L. REV. 141 (2013).
167. The best known pro-fracking industry group is Energy In Depth, an organization that highlights the scientific studies that support the case for fracking (and criticizes studies that undermine that case). About EID, ENERGY IN DEPTH, http://energyindepth.org/about/, archived at http://perma.cc/UT6-TJ2U; see also AM. PETROLEUM INST., THE FACTS ABOUT HYDRAULIC FRACTURING AND SEISMIC ACTIVITY (2014), http://www.api.org/~/media/Files/Policy/Hydraulic_ Fracturing/HF-and-Seismic-Activity-Report-v2.pdf, archived at http://perma.cc/5G25-SXAC (downplaying the connection between hydraulic fracturing and seismic activity by presenting fracturing as “a safe, proven technology”); Raymond G. Mullady, Jr., Fracking Chemicals Not Harmful, POWER ENGINEERING, May 9, 2011, http://www.power-eng.com/articles/2011/05/frack ing-chemicals-not-harmful.html, archived at http://perma.cc/445U-FH8Q (condemning a congressional report critical of fracking). For a discussion of the misuse of science by fracking’s critics, see Kevin Begos, Experts: Some Fracking Critics Use Bad Science, ASSOCIATED PRESS, July 22, 2012, http://bigstory.ap.org/article/experts-some-fracking-critics-use-bad-science, archived at http://perma.cc/J6U-AVT5.
168. This can be a particularly effective technique because the brain’s fear circuitry, centered in the amygdala, can override reason. Neurobiologist Dean Buonomano calls this dynamic “amygdala politics” and warns that “we should be most concerned about how vulnerabilities in our fear circuits are exploited by others.” DEAN BUONOMANO, BRAIN BUGS: HOW THE BRAIN’S FLAWS SHAPE OUR LIVES 138 (2011).
169. See supra note 25. Seamus McGraw, whose family struggled with the decision whether to lease mineral rights to the family farm in Pennsylvania, describes one anti-fracking activist’s approach this way: She made it her life’s work to collect and disseminate a vast collection of horrifying anecdotes, nightmare accidents, and stunning examples of the environmental damage that natural gas drilling can cause.... Taken together, these accounts painted a picture of an industry run amok, supported with a wink and a nod by conspiratorial politicos in Washington and in state capitals across the country... that, she believed, were all part of a vast conspiracy of greed to rape the land and keep secret their nefarious machinations. MCGRAW, supra note 43, at 160.
170. The fracking debate seems likely to trigger some well-known psychological and cultural biases that can influence how people assimilate new information about fracking’s risks. More specifically, confirmation bias can affect how we assess the credibility of new information about risk, leading us to discredit studies or other evidence that contradicts our initial beliefs. Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 REV. GEN. PSYCHOL. 175, 175–76 (1988). Similarly, cultural identities can also bias assimilation of new information about risk in comparable ways. Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 YALE L. & POL’Y REV. 149, 149–50 (2006). For a fuller description of these phenomena, see generally Spence, supra note 170, at 174–85.
171. This idea requires a distinction between voters’ preferences and their welfare, a distinction that sometimes gets conflated when discussing utility maximization in the voting context.
172. See JILL JONNES, EMPIRES OF LIGHT: EDISON, TESLA, WESTINGHOUSE, AND THE RACE TO ELECTRIFY THE WORLD 198–200 (2003) (describing deadly fires and electrocutions associated with distribution wires in electricity’s early days).
173. See BRIAN LADD, AUTOPHOBIA: LOVE AND HATE IN THE AUTOMOTIVE AGE 18 (2008) (quoting one English critic as saying that “the car, unlike the train, does not clot its horrors at the journey’s end but smears them along the way”).
174. BROWN ET AL., supra note 164, at 23. Ironically, the lone case in our study in which a local government imposed a temporary moratorium on fracking was struck down by the New York Courts. See Jeffrey v. Ryan, No. CA2012-001254, 2012 WL 4513348, at *7 (N.Y. Sup. Ct. Oct. 2, 2012) (holding that a local moratorium was preempted because the emergency condition that supposedly motivated the moratorium was mitigated by state regulation of oil and gas production). The court pointed to the State of New York’s moratorium (which has been in place for more than four years, with no end in sight) as well as the state-permitting regime to justify preempting the ordinance. Id.
175. Paul J. Gough, Fracking Sees Widespread Support in New Poll, PITTSBURGH BUS. TIMES, Nov. 18, 2013, http://www.bizjournals.com/pittsburgh/blog/morning-edition/2013/11/ fracking-sees-widespread-support.html, archived at http://perma.cc/4CTD-NJLT. Theories of deliberative democracy also support the notion that despite cognitive and cultural biases, preferences change as voters absorb more and more information. See James S. Fishkin & Robert C. Luskin, Experimenting with a Democratic Ideal: Deliberative Polling and Public Opinion, 40 ACTA POLITICA 284, 291–93 (2005) (observing that, in deliberative polling experiments, participants’ preference changes are information driven and are largely unaffected by sociodemographic variables).
176. In welfare economics, Kaldor–Hicks improvements are changes in the status quo that would produce a Pareto superior outcome (that is, they would increase the welfare of some without decreasing the welfare of any) assuming the winners can compensate the losers. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 14 (9th ed. 2014). Note that this concept is a way of measuring the welfare effects of changes from the status quo. The objections or challenges to this view posed by the Coase Theorem are discussed later. See infra notes 189–90 and accompanying text.