Framework For Fracking Regulation Begins To Flesh Out

Law360, New York (February 17, 2015, 12:23 PM EST) -- On Jan. 15, 2015, the U.S. District Court for the District of New Mexico became the first federal court to address questions related to the scope of local governments' ability to regulate oil and gas development within their jurisdictional boundaries. In SWEPI LP v. Mora County, New Mexico, the district court struck down a county ordinance prohibiting the extraction of oil and gas, a decision that has generally been hailed as a victory for industry. Yet, a closer reading of the 199-page opinion that U.S. District Judge James O. Browning issued reveals that the real import of the SWEPI decision is not the result, but the framework the court articulated for analyzing two issues driving the public debate over the regulation of oil and gas development: (1) whether state and federal laws permitting oil and gas extraction preempt local regulation of oil and gas operations; and (2) whether, if local regulation is permissible, those regulations can represent a taking of private property....

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