The environmentally controversial process of hydraulic fracturing (commonly referred to as "fracking") has led to a recent explosion in the supply and sale of natural gas in the United States. However, every fracking operation creates a sizable amount of toxic wastewater that requires disposal, and drillers in Pennsylvania have increasingly been shipping their waste across the border to Ohio because of Pennsylvania's inadequate internal disposal options. In response, Ohio has passed legislation that taxes out-of-state fracking waste at a greater rate than waste derived from natural gas drilling within its borders. This Note examines whether Ohio's taxing scheme violates the Constitution's "dormant" Commerce Clause. which generally prohibits states from placing discriminatory burdens on articles of interstate commerce. Analyzed through the lens of several Supreme Court decisions concerning the interstate waste market (colloquially referred to as the "Garbage Wars"), this Note ultimately concludes that Ohio's uneven taxing scheme is an unconstitutional burden on interstate commerce.
Discrimination in the Marcellus Shale: The Dormant Commerce Clause and Hydraulic Fracturing Waste Disposal,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol88/iss1/13