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The State of Fracking in Various States

frackingWho controls the regulation of hydraulic fracturing, known informally as “fracking”? This notion is being challenged in Michigan and other locations, too. It appears that state law is preeminent in most matters of oil and gas development, but that has not stopped local authorities from trying to regulate, limit or in some cases prohibit fracking.

Cannon Township in western Michigan recently adopted regulations regarding new building construction that appear to limit fracking. The ordinances required a variance for lighting structures (they cannot be taller than 25 feet) that may limit the abilities of companies to drill.

Indeed, the state of Michigan officially is the legal issuer of drilling permits. However, local authorities have some wiggle room in that they do have some authority regarding storage and transportation, especially transportation of hazardous materials, as well as noise abatement and traffic congestion. Fracking takes place often in rural and residential areas, and local authorities may deem the existing roadways insufficient to handle the traffic and materials being transported.

The oil and gas industry is now faced with a diverse group of local laws and has to proceed cautiously, unsure as to what hurdles will be placed by local authorities.

In Colorado, Perry Buck, a Republican legislator, has proposed that mineral owners be compensated for lost property value by counties who then enact limiting regulations. This has led to further questions, including how to assess damages and determining when the beginning of the enterprise would be established: when the decision to drill was made or when the drilling commenced. To complicate matters, it is unclear if Colorado’s Democratic Governor John Hickenlooper would sign that legislation, if passed.

Montana is dealing with issues still at the state level, essentially in the arena of water quality. Certain environmental and citizens’ groups are at odds with oil and gas development companies regarding the components of the water that is injected for the purposes of fracking.

Other fracking issues have come before local governmental groups in places ranging from Denton, Texas to Compton, California to Lafayette, Colorado.

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