The Political Economy of Local Vetoes

According to the environmental group Food and Water Watch, within the last few years more than 400 local governments, from California to Texas to New York, have enacted ordinances restricting or banning within their borders the use of hydraulic fracturing (fracking) to produce natural gas or oil from shale formations; indeed, there are more than 200 of these ordinances in New York State alone. These kinds of local vetoes of a state-regulated activity pose the potential for claims that the local ordinance is preempted by state oil and gas regulation, as well as regulatory takings claims by holders of mineral rights devalued by the local ban. Therefore, this Article explores the distribution of the costs and benefits, how distributional concerns drive the politics that cause conflicts in the first place, and how the decision rules courts use to resolve preemption and takings claims try to address those distributional concerns.