Into the Fracking Fray: A Balanced Approach to Regulating Hydraulic Fracturing in Tennessee

By Plosser, W. McDonald | The University of Memphis Law Review, April 1, 2014 | Go to article overview

Into the Fracking Fray: A Balanced Approach to Regulating Hydraulic Fracturing in Tennessee


Plosser, W. McDonald, The University of Memphis Law Review


I. INTRODUCTION .................... 668

II. BACKGROUND OF FRACKING ..................... 670

A. Fracking Basics ..................... 671

B. Benefits and Drawbacks ..................... 672

C. Overview of Fracking in Tennessee ..................... 675

III. REGULATORY HISTORY ..................... 676

A. Federal Government ..................... 677

B. State Government ..................... 681

1. New York ..................... 683

2. Pennsylvania ..................... 684

3. Alabama ..................... 685

C. Local Governments ..................... 686

1. Zoning Ordinances ..................... 687

2. Roads and Traffic ..................... 688

3. Permitting ..................... 689

D. Tension and Preemption: The Clash Between State and Local Governments ..................... 689

IV. A BALANCED APPROACH FOR TENNESSEE ..................... 693

A. TDEC 's New Fracking Regulations ..................... 693

1. Permits ..................... 694

2. Public Notification ..................... 695

3. Siting ................. 696

B. Local Governments as Viable and Necessary Regulators in Tennessee ................. 697

C. Responses to Potential Problems with Local Government Regulation ................. 700

V. Conclusion .................... 701

I. Introduction

For decades in the United States, the unrelenting norm in energy consumption has been the heavy use of crude oil amidst volatility in the nations that comprise the Organization of the Petroleum Exporting Countries,1 compounded by the harmful environmental and economic effects of coal production and emissions.2 In the midst of this uncertainty, a method of drilling for oil and natural gas has become one of the cleanest, most profitable, yet controversial solutions. Hydraulic fracturing ("fracking") has been in use for many years in states like New York and Pennsylvania.3 The process involves new techniques in drilling for oil and natural gas that penetrate deep into the Earth's crust and release pressurized water and chemicals in order to break up large underground rock formations rich in natural gas,4 known as shale deposits.5 As awareness of these shale deposits increases, and as the technology to access their contents becomes more attainable, so too does the potential for economic benefit. The benefit is likely to have farreaching effects on a national and an international scale. The United States Department of Energy's Office of Fossil Energy recently commissioned a report to detail the macroeconomic impact of fracking's increased use.6 The report concluded that the United States' GDP could grow by as much as $47 billion by the year 2020 based on the increased ability to produce and export natural gas extracted via fracking.7 Not only would the United States be able to produce its own energy, but it would also reap tremendous profits from that increased production.

In Tennessee, increasing investment in fracking has triggered a need for corresponding regulation. However, the debate between state and municipal governments as to who should regulate the fracking industry will likely surface with the advent of regulations provided by the Tennessee Department of Environment and Conservation ("TDEC").8 While these regulations pave the way for state control, municipalities, through zoning ordinances and specific local knowledge, will also influence how fracking is regulated in the years to come.

In order to avoid this potential conflict between state and local governments, Tennessee must learn from the mistakes of other states in crafting a balanced and efficient method of regulating fracking as production in the state becomes increasingly prevalent. The way in which state and local governments grapple with these issues will have substantial influence on the efficiency, safety, and profitability of fracking in Tennessee. …

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