As interest in the oil-rich Tuscaloosa Marine Shale intensifies, parishes across the state’s midsection — including Tangipahoa, St. Helena and West Feliciana — are beginning to realize what their northern counterparts struggled with during the Haynesville boom: local regulation of the oil and gas industry is largely pre-empted by state law.
Pre-emption — in which lower levels of government are prevented from enacting regulations that overlap or compete with laws of a higher government — is an increasingly visible issue as many states with shale activity, in which “fracking” is widely used, try to balance regional economic development with community interests and environmental protections.
Hydraulic fracturing, or fracking, is the process of using pressurized fluid to fracture a rock formation, allowing the oil or gas to be extracted. It’s a process that has raised concerns among environmental activists and some parish and municipal officials.
In Louisiana, the state Department of Natural Resources is charged with regulating all oil and gas activity in the state with the department’s Office of Conservation having sole authority to issue permits.
State law specifically forbids any other agency or government “to prohibit or in any way interfere with” drilling authorized by the state.
In addition to granting permission to drill, the state regulates everything from drilling processes and waste disposal to well control incidents and groundwater protection, said Blake Canfield, staff attorney for the Office of Conservation.
Because the state’s regulations are so far-reaching, local governments cannot regulate the industry, courts have ruled.
In 1990, the city of Shreveport tried. The city adopted an ordinance banning drilling within 1,000 feet of Cross Lake, the city’s main water source, and placed additional restrictions on drilling between 1,000 and 5,000 feet of the lake.
An energy company holding state-granted mineral leases under and around the lake bed sought a waiver of the ordinance, was denied and filed suit.
The district court ruled the city was within its rights to protect the water supply and upheld the local law, but the U.S. 5th Circuit Court of Appeals reversed.
The Louisiana Supreme Court also has described the authority of the Louisiana Office of Conservation as near-absolute, and the state attorney general likewise has found local regulations to be preempted.
This does not mean, however, that local governments cannot enact ordinances that affect the drilling industry, said Patrick Jackson, attorney for Bossier Parish.
“Parishes do have the ability to regulate other issues peripheral to the drilling,” he said, noting that roads and bridges, noise, lighting, signs, fencing, vibration and dust are among such issues.
Jackson helped draft a series of ordinances for Bossier Parish in response to the onslaught of drilling activity that followed the Haynesville Shale discovery in northwest Louisiana.
One of the areas Bossier Parish chose to regulate was noise, Jackson said. Another was the use of roads and bridges.
“Haynesville hit almost overnight,” he said of the natural gas play. “Bossier Parish lost almost $10 million in roads and bridges” because of the heavy-weight trucks and increased traffic. “DeSoto was far worse.”
Bossier Parish responded by adopting ordinances that applied a modified version of the weight restrictions for state roads to parish roads, including the same fine schedule, Jackson said.
“Most parish roads are not sufficient to handle an 80,000-pound load,” Jackson said. “They see residential traffic, trash trucks and the occasional 18-wheeler, but these well sites have hundreds of trucks a day. No parish roads are set up for that kind of beating.”
Other parishes in the area passed similar ordinances, including DeSoto, Caddo, Bienville, Webster and Vernon.
Concerns about fracking
One area of concern in particular has led local governments in Louisiana and elsewhere to push the boundaries of pre-emption: fracking.
Fracking fluids consist primarily of water but also contain small percentages of sand to prop open the fractures and chemicals to kill bacteria and prevent corrosion or deposits in the pipes.
Environmentalists contend fracking pollutes the air, contaminates water and overtaxes water resources — claims the industry disputes.
Those claims, however, have led towns and counties in several states, including New York, Pennsylvania and Colorado, to enact either outright bans on drilling or tighter restrictions on fracking operations.
Each has met with opposition: In New York, the towns’ drilling bans have been challenged in court. In Pennsylvania, the state legislature has tried to override local zoning restrictions. And in Colorado, the governor created a task force to recommend possible solutions.
The Tangipahoa Parish Council also has decided to give local regulation a try.
After receiving residents’ calls of concern about potential fracking operations and talking to other states where the practice has been going on for years, Chairman Carlo Bruno said, the Parish Council decided to draft an ordinance to establish a permitting system.
“There are very few counties or parishes that have local regulations, except as to roads,” Bruno said. “But we wanted a way to guarantee we would know who’s doing the drilling, who’s responsible for the fracking, what chemicals are going to be on-site or in the ground, where the water would be coming from and what’s going to happen to the produced water after they’re finished.”
The ordinance, scheduled for public hearing and adoption Monday, would require any company drilling in the parish to register the well with the parish permit office and pay a fee of $750 per well.
Operators would be required to provide a copy of the state drilling application and permit, including the well name and identification number.
Using that information, the permit office will search a website — fracfocus.org — where the state requires operators to list their fracking fluid ingredients and concentrations, Bruno said.
The list of chemicals may not be complete, however, because the state does not require the companies to disclose trade secrets, Bruno said.
Tangipahoa’s proposed ordinance is more acceptable than an earlier version the council had proposed, said Don Briggs, president of the Louisiana Oil and Gas Association.
The previous version, which was voted down 5-4 with one abstention, would have required a $2,000 fee per well, more information on the drilling operation, access for local inspections and a five-year commitment to monitor the well after its closure, among other things.
The association had objected to the initial proposal, noting that its requirements overlapped and in some cases conflicted with state regulations, Bruno said. The group also said the fees were too high, he said.
Briggs and the association’s attorney met with council members to come to a compromise, Bruno said. The new proposal is the result of those meetings.
“It’s not a very difficult permit at all,” Briggs said. “They’re not regulating or saying whether we can drill. They’re just saying they want more information, and we don’t have a problem with that.”
As for the fee, Briggs said, “When you’re drilling a $15 million well, a $750 fee doesn’t hurt anything. It’s a little on the high side. Actually it’s too high, but I set that amount, so I can’t complain.”
The Louisiana Oil and Gas Association is helping several other parishes, including St. Helena and West Feliciana, draft ordinances as well, Briggs said.
“The local governments can’t regulate the industry, but they can and do have responsibilities to their communities in relation to roads, noise, dust and regulations such as that,” he said. “We work with all the parishes on making sure we have in place a way for companies to repair roads and work with them on any issues they may have.”
Working toward a compromise is the best way to a solution, said Jackson, the Bossier Parish attorney.
“Everybody has an interest, and everybody thinks their interest is paramount, but there is a balance that can be achieved,” Jackson said. “It’s not worth delaying the economic boon of the shale. Just work it out.”