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Keywords

environmental law; energy; fracking; state regulation; preemption

Abstract

Donald Trump has won the 2016 presidential election, and, based on his campaign rhetoric, it seems reasonable to anticipate that the next four years will see a rollback of federal rules and regulations originally intended to combat climate change and environmental pollution in favor of increased production of fossil fuels, including coal. This raises the question of where we can look for protection of environmental goals, if not to federal law or agencies. Unconventional solutions to energy and environmental issues may be the only way to move forward on environmental challenges in the near term. This Article suggests one such unconventional solution to the problems presented by the use of hydraulic fracturing (“fracking”). In response to the perceived environmental threats of fracking, many cities and towns have sought to limit it through local bans, moratoria, and regulation. However, in 2015, a number of states passed laws that forbid any city, town, or other municipal body from banning fracking or passing certain regulations on the practice. Further, the highest courts of several other states have ruled that state law preempts local restrictions on fracking. In many cases, this means that local governments must allow fracking, so the question arises as to how these governments can address environmental concerns. This Article is the first to propose that cities and towns where fracking is taking place could incorporate and enforce existing state environmental laws. By doing so, those municipalities may be able to minimize some of the environmental harms associated with fracking. Further, this Article explains why incorporation and enforcement of state-level environmental laws by cities and towns should not be expressly or impliedly preempted.

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