Achieving Environmental Health Goals Using Traditional and Untraditional Law and Policy Approaches

As environmental health professionals working in the Marcellus Shale region sought to use statutory and regulatory systems to protect the community from potential health hazards, they used the traditional approaches of seeking bans, moratoria or significant restrictions on the fracking process. This presentation will present some examples of those approaches. While these policy changes were successful in some cases, they were not universally adopted and may be temporary fixes. To secure more comprehensive protection, environmental health lawyers and practitioners should understand some of the laws that impact fracking that do not fall within the typical environmental law framework as these areas may provide additional protections from fracking--or can be changed to do so. For example, property law defines the circumstances under which a landowner may be essentially forced to allow fracking, through a situation called pooling, or may be able to essentially prevent fracking on surrounding land by refusing to grant access. Examining the relevant property law may reveal the need to seek law change that would increase landowners rights to stop fracking or may reveal an available option under current law. Similarly, consumer protection statutes may provide protection for landowners who signed leases to allow fracking without a fair understanding of the impact of the access provided under the lease. This presentation will walk the audience through these non-traditional areas of the law and demonstrate why and how environmental health lawyers and practitioners should understand these provisions and use them to restrict fracking.