Maryland Attorney General, Brian Frosh
The Maryland Attorney General has released an official legal opinion addressing whether fracking regulations issued by the Maryland Department of the Environment (MDE) “preempt,” or override, local fracking bans.
The opinion comes on the heels of the Administrative, Executive & Legislative Review Committee's (AELR) public hearing on MDE's proposed fracking regulations held in December. During testimony, Committee Chair Senator Roger Manno questioned if the regulations, which allow gas drilling, would usurp local ban ordinances that have passed already. This would include three municipalities in Western Maryland. The answer: it depends. The opinion letter says that whether a local law is preempted by state law must be determined by examining the specific local law at issue:
"Thus, it is my view that a local government may be able to ban hydraulic fracturing in that jurisdiction, depending on the particular language of the local law at issue, A court would analyze the exact language of any challenged local law to determine whether it regulates some aspect of hydraulic fracturing that is preempted by State law..."
This gives some support to local protections that are springing up all across Maryland. But because the opinion doesn’t reach a firm conclusion, local bans could still be vulnerable. Moreover, Garrett County, where fracking would start, does not have authority under state law to enact this type of a ban, meaning that residents in the most vulnerable part of the state still have no way to protect themselves should Maryland legalize fracking. Given the shocking laxity of MDE’s recently proposed regulations, it is more important than ever for Maryland’s legislature to step in and protect Western Marylanders from fracking. The proposed regulations, which have already been under scrutiny from the legislature, repeatedly leave industry in the driver’s seat and fail to offer even baseline protection from some of fracking’s biggest risks, like air pollution. In some respects, the regulations limit MDE more than they limit industry, by capping the penalties MDE can seek from violators at only $50,000 and by requiring MDE to approve or deny permit applications in only 30 days with the possibility of only one 30 day extension.
MDE’s proposal will not protect Western Marylanders, and the attorney general’s ruling does not provide a meaningful solution for those of us in Garrett County either. It is up to the legislature to decide whether Maryland will protect its citizens.