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In an earlier blog post this July, we reviewed recent hydraulic fracturing (or “fracking”) developments in New Jersey and New York. The legal and political landscape concerning fracking continues to evolve, including in Trenton, where, on September 21, 2012, New Jersey Governor Chris Christie vetoed bill A-575—a proposal to ban wastewater and other hydraulic fracturing byproducts from being imported into New Jersey for treatment or disposal.
A-575 had previously passed the Assembly (56-19-4) and the Senate (30-5). Citing the Dormant Commerce Clause of the United States Constitution, Gov. Christie questioned whether the bill was constitutional. The Dormant Commerce Clause limits individual states’ ability to regulate commerce among states. This legal doctrine is inferred from the Commerce Clause in Article I of the United States Constitution, which expressly grants the United States Congress power to regulate commerce among the states. By negative implication, the states generally do not share this authority, and locally protectionist laws are therefore suspect.
In vetoing the would-be ban on the disposal of fracking waste in New Jersey, the Governor reasoned that because fracking “is not occurring and is unlikely to occur in New Jersey,” the bill was not in fact neutral (as it appeared to be on its face) and essentially prohibited fracking waste generated solely outside New Jersey. By banning fracking waste that could only come from outside the state, the Governor reasoned that this bill treaded constitutionally prohibited waters.