In the ongoing battle over the development of domestic fossil fuel resources, there is no shortage of unanswered questions. Is hydraulic fracking perfectly safe? How toxic are the chemicals used in that controversial oil and gas extraction technique? To protect the environment, do we need to better regulate the process?
These are questions that can be answered -- and, in fact, are already answered -- most accurately by dispassionate scientists. But in a country whose public policymaking apparatus is so dominated by money, the scientific questions may ultimately be less important than a set of key political questions: namely, which level of government gets to decide whether drilling moves forward -- state or local?
In states where oil and gas companies are aggressively expanding operations, courts are already weighing in on this thorny legal issue, which involves the doctrine of "preemption." In Colorado, for example, a Gunnison County judge found that “there is no express or implied preemption" in a recent ruling against a drilling firm that was trying to overrun local drilling regulations. Likewise in New York, a State Supreme Court judge upheld a local town's zoning laws against natural gas drilling in the face of a major drilling concern's effort to leverage state and federal statutes against the ordinance.
Countering this good news, however, is a political establishment looking to crush the local uprising against fracking in its infancy -- even if that means ignoring rhetorical paeans to "local control."
Colorado is a microcosm of the larger battle. Republican Attorney General John Suthers constantly touts himself as a pro-"local control" conservative, most recently floating the "states' rights and individual freedoms" argument as justification for his effort to overturn President Obama's healthcare bill at the U.S. Supreme Court. But Suthers has become notorious for his selective commitment to such principles -- and his posture when it comes to oil and gas drilling is no exception to that trend.
That’s right, the same Attorney General marshaling sovereignty arguments against the federal health care bill is now sending thinly veiled threats of legal action against Colorado counties -- including his own home county, ultra-conservative El Paso County -- if they continue trying to regulate where and how oil and gas drilling can happen within their boundaries.
At the state legislature, a group of Democratic legislators have responded by pushing legislation to clarify the legal gray areas of preemption and explicitly empower local communities to regulate fossil fuel drilling as they see fit. Their bill, however, was crushed by both Republican votes and Democratic Gov. John Hickenlooper, who used his 2012 State of the State address to declare his opposition to the initiative, saying of county-level regulations: "The state can’t have 64, or even more, different sets of rules."
The line, which invokes the concept of business efficiency, is a near word-for-word reproduction of a talking point being echoed by oil and gas industry representatives (not surprising, considering Hickenlooper recently appeared as an official spokesperson for the industry in its paid television ad campaign promoting fracking). It's also being repeated by state-level regulators themselves, who the Denver Post notes openly "oppose local rules for protecting air, water and serenity."
Is this just a petty, territorial pissing match between jurisdiction-greedy politicians? If only. No, there is a more substantive reason state officials are trying to pull rank -- and that reason is their close relationship with the oil and gas industry.
Preemption, you see, makes it far easier and more cost-efficient for an industry to shape policy in its own industry. With the power to override local government, rather than having to buy off hundreds of local officials or actually engage the public in a grassroots way, an industry simply has to influence a few major politicians far away from the communities actually affected by the policy. Indeed, rather than having to convince the people impacted by a gas rig near their kid's school, oil and gas companies can simply buy off or lobby a few insulated politicians at a cocktail party in the state capital -- a politician, in short, who is safely insulated from the real-world effects of policy. It goes back to a basic political axiom: The higher the level of government allowed to set maximum standards, the fewer the number of policymakers executing regulatory decisions, and therefore the easier it will likely be for an industry to get what it wants -- which is no regulation at all.
The industry uses Orwellian newspeak to acknowledge this reality as it pushes for preemption. As one industry lawyer told the Denver Post recently, "States have more flexibility in their regulations to accommodate needs of the industry” -- with “flexibility” being the euphemism du jour for describing a willingness to take orders from corporate paymasters.
So when it comes to energy in a state like Colorado, in goes the cash to politicians like Hickenlooper, and out comes not only statements in big State of the State speeches, but industry-friendly appointments to the very state regulatory body that is preempting municipal governments. Sure, there are public moves to make it all look kosher -- a blue-ribbon task force here, mushy environmental rhetoric there -- but in the end, the public is asked to believe that a distant state agency that is already falling down on the regulatory job will somehow be more vigilant in protecting public health and environmental concerns than local communities themselves.
Of course, "local control" has been the clarion call for all sorts of terrible political movements in the past, from the movement to distort education curriculum to the movement against civil rights. But there's a key difference between those efforts and the the fight over energy development: In today's struggle over fossil fuel development, "local control" is not about opposing regulatory floors. It's about breaking through regulatory ceilings. In other words, state governments aren't typically saying every county must meet minimum regulatory standards that those counties can then choose to surpass. They are instead trying to use preemption to tell counties they either can't go beyond any state-sanctioned minimum -- or can't do anything at all.
That was the recent outcome in Pennsylvania -- which may be a harbinger for everywhere else. There, the oil and gas industry didn't merely convince the legislature to block a Colorado-like proposal to empower muncipal regulation -- it actually got the legislature to pass a draconian new law explicitly preventing local communities from regulating fracking operations in their midst.
The troubling outcome underscores why such jurisdictional struggles across the country are so important. If more states follow Colorado and Pennsylvania in undermining local control, major scientific findings about the negative effects of fracking could be rendered moot.