Moratorium

New York's highest state court ruled today that local governments have the legal authority to use zoning to bar oil and gas drilling, fracking and other heavy industrial sites within their borders. In a 5-2 decision, affirming the rulings of three lower courts, the justices dismissed challenges to fracking bans created by two towns, Middlefield and Dryden.

The case has been closely watched by the oil and gas industry in the Marcellus region and nationwide. Over 170 towns, villages and cities in New York state have crafted local moratoria or bans on fracking. Dozens more towns are expected to enact moratoria in the wake of this ruling, according to Earthworks, one of the public interest groups whose attorneys worked on the case.

Nationwide, nearly 500 local governments have enacted measures against fracking, according to Food and Water Watch which tracks local control actions, including towns in Texas, West Virginia, Pennsylvania, Colorado and California, each of which have been the focus of recent shale rushes.

The oil and gas industry had argued that allowing local control over fracking risked creating a patchwork of rules in different municipalities. Environmental groups countered that the rights of local communities to control development within their borders trumped those concerns, and that local governments had the clear legal authority to decide how development could proceed.

“On the one hand, you're saying yes, we should have a comprehensive strategy to deal with such an important issue to our state – energy,” Chief Judge Jonathan Lippman explained when the cases were argued before the court on June 3. “And on the other hand, municipalities believe (they can) determine how they're going to live. They want some voice in how they live.”

Today, less than a month later, the court's majority decided in favor of local control. “The towns both studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately-cultivated, small-town character of their communities,” the New York Court of Appeals wrote in its majority ruling.

While many countries, including France, Germany and South Africa, have banned or delayed their embrace of fracking, one country is taking a full-steam-ahead approach to the unconventional drilling technology: Argentina.

The country is welcoming foreign shale companies with open arms in the hope that oil and gas drilling will help combat one of the world’s highest currency inflation rates. But the government there is also facing violent clashes over fracking in arid regions of the Andes mountains and allegations from locals of water contamination and health problems.

Argentina’s Vaca Muerta shale formation — estimated to hold an amount of oil and gas nearly equal to the reserves of the world’s largest oil company, Exxon Mobil — has already attracted billions in investment from the major oil and gas company Chevron.

In April, the government drew global attention when it announced plans to auction off more acreage. “Chevron, Exxon, Shell have shown interest in Vaca Muerta. They will compete for sure,” Neuquen province Energy Minister Guillermo Coco told potential investors on a road show in Houston on April 30th.

Argentina, which the EIA estimates could hold even more shale gas than the U.S., already has over 150 shale wells in production, more than any country in the world aside from the U.S. and China. California-based Chevron, in partnership with Argentina’s state-owned oil company YPF, invested $1.24 billion in a pilot program last year. Last month, Chevron announced an additional $1.6 billion effort for 2014, part of Chevron's overall investment plan that could top $15 billion. The company is hoping that this plan will allow it to extract 50,000 barrels a day of shale oil plus 100 million cubic feet of shale gas per day from the country’s Andes mountain region.

American drillers have talked up Argentine shale as the next big thing. “Vaca Muerta is going to be an elephant compared to Eagle Ford,” Mark Papa, CEO of EOG Resources told the Argentine press in 2012, referring to a major oil-producing shale formation in Texas.

Fracking for oil and gas will not be happening in Los Angeles any time soon after City Council members unanimously voted to ban the practice within city limits today. The vote passes the motion to the City Attorney's office where it will be rewritten as a zoning ordinance before returning to City Council for a final vote.

L.A. is now the largest city in the U.S. to refuse the dangerous extraction process. Local bans have become an effective protective measure against fracking, and are in place in numerous jurisdictions worldwide including Vermont, Hawaii, areas of New York State, Quebec, and France among many others.

The Los Angeles ordinance prevents the use of fracking until effective governmental oversight and regulation is in place at the local, state and federal levels.

“I think we can all agree unregulated fracking is crazy,” said Councilman Paul Koretz, co-author of the motion.

California is in the midst of a devastating drought, raising concerns over access to fresh water supplies. Fracking uses approximately 5 million gallons of water per frack job.

New York Governor Andrew Cuomo has said repeatedly that, in making the decision on whether to allow horizontal hydrofracking in New York State, he wants to rely on “science, and not emotion.” He is relying on the NY Department of Environmental Conservation (DEC) to give him that science - but an array of documents suggest the Governor is being badly served.

Documents recently uncovered by Environmental Working Group shine a unique spotlight on privileged access granted to gas industry lobbyists by DEC officials with regards to fracking.

Some of the most important conversations revealed in those pages have little to do with debate over the science of fracking’s environmental footprint – and everything to do with the politics of ending New York’s temporary moratorium and allowing shale gas fracking to move forward in the state.

Governor Andrew Cuomo has gone to great lengths to present the course his state will take with regards to fracking as the opposite of Pennsylvania’s drill-baby-drill approach, which has left regulators scrambling to keep up and allowed a growing list of problems to emerge. By contrast, New York will make an incremental, guarded entry into fracking, Cuomo alleges. And his regulators will take an approach that rises above the fray of conflicts between industry and environmentalists.

“We have a process. Let’s get the facts,” Governor Cuomo said last year, with regards to ending the state’s temporary moratorium on fracking. “Let the science and the facts make the determination, not emotion and not politics.”

But it’s increasingly clear that the process has actually been based on anything but science. Politics, legal considerations and economic concerns have instead predominated. Most tellingly, documents recently uncovered by Environmental Working Group show that industry representatives allowed access to drafts of the state’s permit plans, and used that information to lobby hard against testing for radioactivity in wastewater, for example.

But the documents also show a regular pattern of behind-the-scenes communication between the industry and regulators, at the same time as environmental advocates and others were struggling to be heard through public comments and similar official channels.