EARTHWORKS

Flip-Flopping on Federalism: Who’s the Better Regulator?

Aaron Mintzes's avatar
By Aaron Mintzes

December 6, 2011

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Source: Nick Anderson, Houston Chronicle 1-27-09

Much of the refrain we hear from the House Majority in D.C. over the government’s proper regulatory role over fracking emphasizes local control.  Too often the rhetoric references faceless and unaccountable Washington bureaucrats imposing a one-size-fits-all solution that stifles innovation and efficiency.  Beyond the mere rhetoric, we often here fracking proponents argue that local geology calls for local regulation.  That is, those elected and regulatory officials closest to and most familiar with the geological differences between, say Texas and Colorado, are best equipped to design a regulatory regime to fit. 

The force of this argument is the driver behind the Clean Water Cooperative Federalism Act (HR 2018), a bill that removes the Environmental Protection Agency’s authority to keep our water clean in favor of local oversight.  While hydrology and geology do vary from region to region, this alone does not make local governments the better regulator.  The purpose of having the federal government regulate polluting activities is to ensure that downstream communities are not adversely affected by relaxed rules in a neighboring community.  The Feds set the floor.

In practice, local governments often lack the budget, human resources, or sometimes expertise to provide the best oversight.  More importantly, industry can exercise considerably more influence over local decision makers.  Plus, they get many more bites at the apple.  If some local politicians in one area choose to enact tougher regulations to protect public health and the environment, industry can easily try their hand in a nearby jurisdiction.

Curious then, what we see from the Keystone state.  The state legislature in the Commonwealth of Pennsylvania is debating a pair of industry-supported bills designed to remove a municipality’s zoning power to curb drilling operations.  Instead, faceless and unaccountable Harrisburg bureaucrats will decide where, when, and how many drilling wells will appear near schools, hospitals, and senior centers in small townships all over Pennsylvania. 

These bills require every municipality to allow drilling operations in every zoning district, including residential areas. The Commonwealth’s Attorney General will decide disputes between local zoning officials and industry.  This means that when industry disapproves of a zoning ordinance, it can petition the Attorney General to sue the town.  That’s right.   These proposals effectively turn on its head the whole purpose of the Attorney General.  Instead of the AG defending citizens in disputes involving the public health and welfare, the AG will be essentially industry’s lawyer.  Industry has enough lawyers already without co-opting the state’s popularly elected chief law enforcement official.

Besides, zoning decisions have remained the exclusive jurisdiction of municipalities almost since time immemorial.  It’s just one of those essential powers everyone has always agreed belongs in local control; there’s no controversy there.  So, why is it that on the one-hand (like in D.C.) fracking proponents believe local control is best?  And on the other hand (like in Pennsylvania) they think centralized uniform standards are best?  The reason is that, in Pennsylvania, the locals care about keeping towns safe from the impacts of the oil and gas industry.  The local zoning rules tend to protect public health and property values rather than industry access.  What this reveals is that all this talk about how local governments do a better job at regulating industry simply goes out the window when the local governments do a better job at regulating industry.  
 


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Tagged with: zoning, pennsylvania, hydraulic fracturing, fracking, federalism, clean water cooperative federalism act

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