On September 17, 2013, the governing council of Highland Park, New Jersey, a borough of nearly 14,000 citizens, passed the first local ordinance in the state that bans hydraulic fracturing within its borders. This ordinance was passed even though there has been no natural gas drilling or hydraulic fracturing within the borough or, for that matter in New Jersey.

The ordinance sets out concerns about the fluids and chemicals used in fracking causing adverse health effects and environmental impacts, that these chemicals contain radioactive elements and other toxic components, and that “there have been more than 1,000 documented cases of water contamination near fracking sites.”

According to a council member, “the intent is to have other municipalities follow suit” and ban hydraulic fracturing municipality by municipality since the state legislature has not been able to pass laws regulating the process.

 The municipality of New Brunswick has already taken up the call. A proposed ban on hydraulic fracturing has been read in council and will be discussed at a public hearing in New Brunswick on October 2, 2013.

In January 2012, Governor Chris Christie vetoed a ban on hydraulic fracturing within the state, opting to sign a one-year moratorium. Efforts to renew the moratorium which expired in January 2013 have failed. 

Moreover, in a separate veto, Gov. Christie refused to sign legislation that would ban treatment and disposal of fracking wastes in New Jersey, claiming that it would not withstand legal review under the U.S. Constitution’s dormant commerce clause.

This veto has not yet been overturned. The Governor pointed to the “undisputed fact” that fracking is not occurring and is unlikely to occur in the state even though the U.S. Geological Survey has identified some gas resources in the South Newark Basin (located in New Jersey and eastern Pennsylvania).

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright’s Energy Practice Group.