3

One of the flashpoints in the current presidential contest, especially in Pennsylvania, is the issue of fracking. I have no doubt that the President and Federal government maintain jurisdiction over federal lands, but it is less clear to me the jurisdiction the Federal government has over private or state lands.

Can the President or Executive branch prohibit fracking on private or state-owned property?

8
  • 3
    Are you asking if they can do this by executive order, without the participation or consent of Congress? – divibisan Nov 1 '20 at 17:44
  • @divibisan - lets start with executive order, as the claim is that Biden would ban fracking. ( as opposed to Biden would support a legislative ban on fracking). But you raise an interesting follow-up question, can Congress restrict property owners to access their mineral rights. But, for the time being confine the Q to action by the Executive branch – BobE Nov 1 '20 at 19:39
  • This isn't an answer, but I would assume that the Executive's authority on this would come via the EPA, and rather than a straight-out ban on fracking, there would be new environmental regulations (likely about groundwater contamination) which would resolve the problem by making fracking safe and/or too expensive to be practical – divibisan Nov 2 '20 at 16:28
  • @divibisan - So the "conflict" might proceed between Fed EPA and State regulators. In many states (maybe most) it is the State that issues permits to exploration companies to operate on private property. – BobE Nov 2 '20 at 16:37
  • As I explore in my answer, what constitutes "private or state-owned property" is ambiguous because the federal government owns mineral rights in many places where the surface rights are owned by private parties or state governments. – ohwilleke Dec 3 '20 at 17:21
2

Can the President or Executive branch prohibit fracking on private or state-owned property?

Not presently, because there are numerous exemptions for hydraulic fracturing in both law and regulation.

There are many exemptions for hydraulic fracturing under United States federal law: the oil and gas industries are exempt or excluded from certain sections of a number of the major federal environmental laws. These laws range from protecting clean water and air, to preventing the release of toxic substances and chemicals into the environment: the Clean Air Act, Clean Water Act, Safe Drinking Water Act, National Environmental Policy Act, Resource Conservation and Recovery Act, Emergency Planning and Community Right-to-Know Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as Superfund.

Also

And even if [Biden] wanted to ban all fracking, he couldn’t. According to Harvard’s Joseph Goffman, the EPA’s former top climate attorney, the president wouldn’t have the executive power unless Congress passed a new law. Mother Jones

The National Resources Defense Council (NRDC) specifically calls for legislation to close the "loopholes".

Legislation is needed to close these loopholes and may be introduced in the new Congress.

Since that call for legislation was made (February 2013), 27 bills were introduced1 (including multiple submissions), in both the House and Senate, during the 113th through 116th Congresses. Only one passed the House — none passed the Senate.

——
1The search for legislation was for "fracking" in either the title of the bill or the text.

1

I have no doubt that the President and Federal government maintain jurisdiction over federal lands, but it is less clear to me the jurisdiction the Federal government has over private or state lands.

The authority of the President is the authority delegated to the President to promulgate regulations under federal environmental laws and laws governing the management of federal lands.

Congress clearly has jurisdiction and authority to enact federal laws that impose environmental regulations upon both private land and upon state owned land. And, it has done so. Among the more notable are the Clear Air Act and the Clean Water Act. There are also multiple environmental laws governing the pollution of land with various kinds of pollutants. All of these laws apply to privately owned land and some apply to state owned lands subject to certain exceptions which are not complete exemptions for all state owned property.

Congress has also enacted industry specific regulations of the oil and gas industry that are not exclusively environmental laws. And, Congress has enacted laws setting guidelines regarding how federally owned lands are managed. The Bureau of Land Management, the Forest Service, and the National Park Service are among them.

In particular, the federal government reserved the mineral rights in most, but not all of the Continental U.S. to the West of the Continental Divide, at the time that the surface rights were homesteaded or otherwise transferred from federal government ownership to private ownership. The story of how it got that way, which has several parts and is rather complex, is retold in a law review article.

enter image description here

(Source)

This needs to be compared to the places where there are oil and gas resources suitable for fracking, roughly speaking, Texas, Oklahoma, Louisiana, Northern Michigan, the Appalachian mountains, select places near the Rocky Mountains, and isolated other sites.

enter image description here

(Source)

So, a very large share of all oil and gas operations that take place on land where the surface rights are owned by private persons or state governments are actually exploiting federal owned mineral rights. In this capacity, the federal government has the same rights that a private owner of the mineral rights would, i.e. the right to lease the mineral rights to ah oil and gas operator who would then extract the minerals pursuant to that lease in exchange for a percentage of gross revenues generated and other limitations in the lease.

The President can't revoke existing oil and gas leases, but can decline to issue new fracking leases for federally owned mineral rights (regardless of who owns the surface rights to the land in question) and can established new environmental regulations that limit fracking, often simply by rescinding new Trump administration regulations that, for example, allowed oil and gas leasing closer to National Monuments and National Parks than had previously been permitted.

The President could also toughen the regulations governing the cleaning up and shutting down of oil and gas extraction sites in a way that makes it less economic to frack, could strengthen OSHA regulation of oil and gas worker safety, and could authorize states to issue their own environmental regulations with respect to private land that would otherwise have been pre-empted by federal law - something the Trump Administration rescinded permission to do in Oklahoma with respect to land (almost half of the state) that the U.S. Supreme Court recently declared to be part of an Indian Reservation.

To say that that the President can or will "ban fracking" oversimplifies the matter and amounts to hyperbole. But the President's regulatory power over the oil and gas fracking industry that can be exercised without Congressional action is considerable.

Also, when a President promises to do something if elected, there is often an implied notion that some of this will be done by pushing for legislation in Congress to give the President this power and Congress certainly has the authority to give this power to the President.

0

You stated:

"I have no doubt that the President and Federal government maintain jurisdiction over federal lands"

... reality is not as simple as that. Many companies have leases to frack on federal lands which extend beyond a potential 8 year Biden presidency. Banning certain companies from fracking on federal lands may require a Biden administration to use federal funds to buy out leases from frackers at current market prices.

There are other methods the US Government might take in preventing fracking on federal land, such as eliminating or repositioning staff responsible for signing off on permits and what not, but this only makes fracking more difficult, not totally impossible and certainty short of a ban.

To summarize my comment, banning fracking on federal lands, like most things to do with politics, isn't always straightforward.

That said, I do believe the U.S. Government has total control over offshore oil production which accounts for about 16% of total oil production in the U.S.. This could potentially cause more disruption, but at the cost of many high paying jobs and probably some political support.

3
  • I'm afraid that you did not answer the question, the question is focused on private or state-owned property ! – BobE Nov 2 '20 at 2:47
  • 1
    I know I didn't answer, I was more attempting to clarify a point the poster made: it's actually not so straightforward that the federal government has the power to ban fracking outright. – M Development Nov 2 '20 at 5:42
  • 1
    Clarifications to the questions ought to be entered as comments rather than answers. As to your point of existing leases, the federal govt, as party to the contract, still has maintains jurisdiction. Should the doctor stop fracking on leased lands they would no doubt be sued for breach of contract, but they could stop the fracking and have to pay for breach. – BobE Nov 2 '20 at 13:45

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .