Legal Process Overview

Legal Processes Overview

This section is to help you better understand the legal frameworks and processes that most commonly apply to the creation or maintenance of fracking infrastructure.

Please note that the information in this Fracking Resource Center is intended for educational purposes only and is not intended to serve as legal advice. If you're considering legal action always consult with professional and certified attorney first.

The different processes and permitting procedures that a gas company must comply with can seem like a complex web to unweave. In order to explain the different rules that govern the processes it might be helpful to take a step back and view the big picture by having a quick refresher on the makeup of the U.S. government.

As you recall there are three branches of government: legislative, judicial, and executive:

Legislative

Your elected representatives are tasked with meeting in congress to make laws that govern the state and country. In some ways your local government also acts as a very small scale legislature. They are elected representatives that makes laws (or ordinances) for the community to adhere to.

Why it matters:

In order to successfully construct and operate fracking activity, fracking companies must adhere to the federal, state, and local laws. Sometimes, there are very specific laws that have been developed in order to directly address how natural gas extraction is done. For example, in Pennsylvania the Oil and Gas Act governs a lot of the operations of fracking.

If we think of local governments as a legislative body and local ordinances as the laws they pass, then a municipalities Oil & Gas Ordinance might be the relevant local rules that a gas company must follow. There may also be several local ordinances that do not regulate oil and gas activity. For example, if a community has an ordinance that says you cannot make noise above a certain level past 9:00pm, then the fracking industry must limit their construction and operations to comply to that restriction.

Creating a zoning plan is one of the most common ways for local governments to create and implement local rules that best suit their needs. Read more about zoning and how it may help protect your community from the impacts of fracking.

Executive

According to the Constitution the executive branch of government is to "take care that the laws be faithfully executed". In order to do this, the executive branch has developed regulatory agencies like the FBI, CIA, or EPA. Either the President on the national level or the Governor on the state level heads the executive branch.

In order to effectively carry out the task of enforcing the laws, agencies sometimes promulgate “regulations”. They are different in part because only the legislature is allowed to create laws and only the executive branch of government makes “regulations.” In practice, laws and regulations function similarly but have some key distinctions. Because we did not elect the officials in the executive branch that promulgate regulations there are different procedures - particularly requirements for public participation and input - that agencies must conduct before a regulation can take effect.

Executive agencies such as the EPA are assumed to have a specialized knowledge and expertise on their area of involvement. So these agencies are also better situated to make regulations that govern those activities than a legislator who may not have had any exposure or knowledge about that activity.

Why it matters:

The Pennsylvania Department of Environmental Protection (PADEP) is in charge of enforcing the Chapter 78a regulations for fracking activity. This comes mostly in the form of issuing permits for the activity and enforcing those permits. Familiarizing yourself with the 78a regulations can help you hold fracking companies accountable for potentially hazardous violations. The permitting scheme that is carried out by the PADEP also allows for various opportunities for you to provide comment and input.

Judicial

The judicial branch is tasked with interpreting the laws. Judges cannot make new laws or regulations but their decisions help to fill in the gaps and gray areas that are sometimes left by those who draft such rules.

Why it matters:

If communities or individuals feel as though fracking activity is done in a way that violates the state laws they may want to bring a legal challenge which will be heard in court within the Judicial branch. Also, in some cases, residents may want to file lawsuits in order to recover costs for damage done to their health or property. See the Protect Our Children Coalition's Organizing ABCs Guide for more information on taking direct legal action.