Yesterday, the Louisiana Supreme Court affirmed that it would not take another look at its decision nearly two weeks ago not to review lower court rulings dealing with whether St. Tammany Parish zoning laws could overrule a land use decision made at the state level. This involved drilling an exploratory well that in the future could lead to the use of the hydraulic fracturing technique that has become controversial through sensationalized opposition to it. As soon as the company had word of the declination, it spudded in.
Of considerable amusement over this two-years-plus odyssey has been the reaction of a vocal minority of St. Tammany residents, some of whom drew upon every imaginable discredited allegation against the practice of fracking to argue why it never should happen. In this time, science has settled with even more certainty that, as long as drillers follow safety protocols, the process does not cause any realistic danger (including the overblown assertion that they cause meaningful earthquakes, although the less common practice of injecting wastewater into deep wells, which can be regulated against, is theorized as a potential cause of these).
The negative reaction by this portion of the population, in an area with many existing wells and contrary to that of folks in other urban and suburban areas across the state who not only launched zero protests of the coming of the process but also welcomed it with open arms, while displaying a bunker mentality if not outright hypocrisy (typically supporting political candidates supportive of free markets and the extractive energy industry and not known for their endorsement of wacko environmentalism) at the same time does raise questions about the jurisprudence involved. The parish had argued that the state permitting process should not override its zoning regulations.
Under normal circumstance, the matter pretty much is open-and-shut. In American jurisprudence regarding state and local government relations, the former has sovereignty and the latter does not; in fact, considered a creature of the former. Thus, state regulation would override local ordinances.
However, St. Tammany Parish has a home rule charter. This permits the jurisdiction to exercise whatever powers the state does not prohibit local governments from having. Less certain is whether that means the state in exercising its general police powers (governing the health and safety of the public, such as issuing a drilling permit) trumps exercise of those by the local government. As well, while zoning laws typically address issues of quality-of-life, an argument about safety might relate; for example, environmental degradation leading to health and safety concerns could serve as a reason not to allow an industrial concern in a residential area (although in this instance no inhabitable permanent structures or public thoroughfares are within reasonable distance of the site).
Particularly in the written dissents of Assoc. Justice Jeanette Knoll (technically, two cases were presented), she stressed these points that the local government might act as an extension of a state’s police power and how much overlap and ability to regulate came between the activities of drilling and zoning. She didn’t write about decisions to these questions, but that the entire court should have reviewed the cases settled in the lower courts with these issues in mind.
While the appeals court gave compelling reasons as to the questions raised, the matter should go on the record in statute or even in the Constitution. Legislation should come forward clarifying this matter, adhering to the original intent (both in this specific matter by law and more generally in the Constitution) that state actions always take precedence, regardless of whatever powers a local government may have claimed in a charter with the presumed acquiescence of the state.
That chance may have passed with the end of the Legislature’s marathon sitting of this year, but 2017 looms. Meanwhile, St. Tammany residents should hope for indications of sufficient well production, and by the time this legislation goes through may bring some of them royalty checks and all of them increased economic benefits.