GENERAL INTEREST Fracking and Zoning Law in Virginia by James A. Howard II The western portion of the Commonwealth of Virginia contains portions of the Marcellus/Utica Shale Shield/Appalachian Natural Gas Plug, which contains valuable oil and natural gas deposits. 1 The Marcellus Shale, also referred to as the Marcellus formation, has been described as a middle-Devonian-age black, low density, carbonaceous (organic rich) shale that occurs in the subsurface. 2 The Utica shale is another rock unit thicker than the Marcellus, more geographically extensive and has already shown that it can be of commercial value, and this rock unit with enormous commercial potential is a few thousand feet below the Marcellus. 3 In other areas of the country, a technology known as fracking has been developed to extract the valuable oil and natural gas from the shale formations. Fracking involves drilling a deep vertical well, then a horizontal well into layers of rock sandwiched in between impermeable layers of shale. 4 Drillers use explosives to pop small perforations in the sides of pipes placed in the 24 VIRGINIA LAWYER | August 2014 | Vol. 63 | GENERAL INTEREST FEATURE horizontal well, then blast down millions of gal-lons of water mixed with sand to pulverize the rock and open up fractures, enabling the oil and gas to escape. 5 There are environmental risks with fracking. Applications for drilling permits have been filed in a number of areas of western Virginia. This article will address the issue of whether, and to what extent, the Commonwealth of Virginia and/or its cities and counties can control drilling for oil and natural gas and fracking. The Stage is Set — The New York Experience On June 30, 2014, the State of New York’s highest court held that towns may ban fracking regardless of state law. 6 This decision created much media interest. 7 On appeal, the energy companies argued that the energy policy of New York, as exemplified by the state law, required a uniform approach and could not be subject to regulation by a mélange of the state’s 932 towns. The appellate court held for the towns, not-ing with approval the following legal principles. The Court noted the legislature had authorized towns to adopt zoning laws for the purpose of fostering the health, safety, morals, and general welfare of the community, and that, as a funda-www.vsb.org by Madonna illustration Dersch