Skip to Main Content
January 12, 2016
Mark Berkman Co-Authors Book Chapter on Hydraulic Fracturing Bans in ACS Symposium Series

Brattle Principal Mark Berkman recently co-authored a chapter in the American Chemical Society’s (ACS) book, Hydraulic Fracturing: Environmental Issues, part of the Symposium Series. The chapter “The Legal and Economic Implications of Hydraulic Fracturing Bans,” was co-authored by Earl Hagström, a partner with Sedgwick LLP.

The chapter explores the legal and economic considerations surrounding ad hoc bans on fracturing and other well stimulation techniques occurring nationwide in municipalities, counties, and in the state of New York.

Opponents of the bans, including oil and gas interests and property owners, have argued that the bans take claim under the Fifth Amendment, which provides, in part, that “private property taken for public use [by the government] shall not be taken without just compensation.” Other opponents, such as mineral rights owners and exploration and development companies claim that these bans constitute a taking of private property and they should be compensated for lost value of natural resources.

The authors explain the legal and economic implications and considerations behind the issue of the scope and extent of government regulation of real property use, and whether that regulation deprives a property owner of his or her rights to the extent that compensation is required. Furthermore, the authors emphasize that economic impacts may extend far beyond those suffered by property owners, including lost tax revenues, a reduction in jobs, and lost royalty or severance revenue. The authors observe that the tradeoff between economic benefits and environmental risk is at the heart of local ban debates and explains the results of moratoriums and regulatory reviews on fracturing bans.

To read the chapter in its entirety, please visit the ACS website.