Fracking/Takings

As the use of fracking has spread during the recent oil and gas boom, inevitable conflicts have arisen between industry and its neighbors, particularly as fracking has moved into densely populated urban and suburban areas. Concerned over the impacts of fracking – such as risks to health and safely, diminished property values, air and water pollution, as well as noise, traffic, and other annoyances – many people have demanded a government response. Government regulation of fracking has struggled to catch up, although in recent years many state and local governments have taken steps to reduce the impacts of fracking in their communities. This article focuses on government restrictions in New York and Colorado, two of the key battlegrounds in the fight over fracking. New York recently prohibited fracking across the entire state, after several towns had enacted their own bans. In Colorado, the people have used the ballot initiative process to enact restrictions on fracking directly. The industry has responded not only with public relations spending to improve the fracking’s damaged reputation, but also legal challenges to these efforts to rein in oil and gas development. In addition to suing local governments, often arguing they do not have authority to regulate fracking, industry threatens to bring costly takings claims for compensation due to alleged economic harms. This Article examines the numerous legal and factual issues that should make it difficult for industry to succeed on fracking/takings claims. First, regulation of fracking, even including outright bans, can almost always be defended as necessary to prevent a nuisance or other background principle of law that justifies government regulation. Even if a nuisance defense could be overcome, industry would have difficulty proving that regulation has destroyed all economic value in their property, unless courts take a narrow view of property that would highlight the arbitrary nature of the “denominator problem.” When fracking/takings claims are considered under the default balancing of the Penn Central case, takings are unlikely to be found except in rare outlier cases. Finally, because requiring governments to pay compensation in fracking/takings cases would likely create a windfall for industry, particularly if the oil and gas eventually is extracted in the future, courts should resist the temptation to rule against government restrictions to protect public health, safety, and the environment.

Candidate Conservation Agreements to Minimize Military Conflicts with Wildlife Laws: The Gopher Tortoise (Gopherus polyphemus)

The proposed Endangered Species Act listing of the gopher tortoise has the potential to impact the military mission at installations in the southeastern United States. Candidate Conservation Agreements with the U.S. Fish and Wildlife Service could be a tool to promote conservation and potentially preclude listing. This project identified military activities that could be affected and determined that military natural resources managers are unsure if such an agreement would prevent impacts to the military mission or impose the same restrictions as federal listing. This project found that if a gopher tortoise Candidate Conservation Agreement can be developed such that it benefits the species as well as the military, it should be used as a model for other species.