The recent unconventional oil and gas development boom, better known as the “fracking” boom, is rapidly transforming communities from California to New York. Substantial scholarly attention has focused on state and federal fracking regulations, but little has focused on local regulations. Articles that have addressed local government regulation have generally considered only whether local governments can regulate fracking, and not how they should do so.
But while scholars continue to debate which level of government should regulate fracking, local governments nationwide have already begun enacting regulations. Accordingly, this Article explores how local governments may regulate fracking under state preemption law, using Colorado as a case study. Colorado has a longstanding legal framework for local government oil and gas regulation due to the industry’s continuous presence in the state prior to the recent fracking boom. Some eastern states have recently adopted Colorado’s approach. But lingering questions remain about the details of local authority, and conflict is brewing as many local governments begin to regulate fracking in their communities.
This Article addresses how the fracking boom uniquely challenges local governments, local governments’ regulatory authority under Colorado law, and how they can approach regulation in a manner most likely to survive judicial review. It begins by explaining fracking’s socioeconomic and environmental impacts, focusing on impacts in rural Western communities. It emphasizes fracking’s socioeconomic impacts, which have been largely overlooked by other legal scholarship, yet constitute the strongest ground for local government regulation. The Article then addresses the legal basis for local government fracking regulation under Colorado law. It highlights that Colorado local governments, especially home rule municipalities, enjoy broad authority over land use matters. Next, the Article critically examines four frameworks for local government regulation — guides published by two organizations, and ordinances already enacted in several Colorado cities. It concludes by advocating that Colorado local governments regulate the fracking boom through land use ordinances targeting the boom’s socioeconomic impacts, rather than ordinances that directly regulate fracking or target the fracking boom’s environmental impacts.