Federal District Court strikes down local ban on fracking

In an opinion issued on January 19, 2015, in the case of SWEPI, LP v. Mora County, New Mexico et al., a federal district judge in New Mexico invalidated a local ban on hydraulic fracturing, commonly known as "fracking", enacted through a local ordinance in Mora County, New Mexico. 

Federal District Court Judge James Browning found that the ordinance violated the Supremacy Clause because it conflicted with federal law - namely that it was substantially overly broad and therefore violated rights protected by the First Amendment. The judge also held that the ordinance violated state laws because it conflicted with state laws by prohibiting activities that state law permits; the production and extraction of oil and gas.

Judge Browning's decision is the first published federal court decision related to local prohibitions on oil and gas development, and will likely be appealed and reviewed by the Tenth Circuit Court of Appeals. State Appellate Courts in Pennsylvania and New York have upheld local government ordinances that control some aspects of oil and gas development.

Local control of oil and gas development will continue to play out in courts across the country, and we are not likely to see uniform results, because states like New York and Pennsylvania defer some aspects of oil and gas development to local government control, while other states vest authority in the state. Oklahoma has vested the Oklahoma Corporation Commission with broad authority to regulate oil and gas development, which would appear to be an important factor for the argument that local control of oil and gas development in Oklahoma would not likely survive a court challenge.

SWEPI LP v. Mora County

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