By Jordan Hollander*
October 3, 2013
Just across the Delaware River from New Jersey, the Commonwealth of Pennsylvania is in the midst of a natural gas boom. This growth in Pennsylvania is driven by hydraulic fracturing (commonly known as “fracking”) of the Marcellus Shale, a geologic formation that stretches from approximately West Virginia to New York. The federal Energy Information Administration estimates that the formation contains 141 trillion cubic feet of natural gas. In 2012, natural gas production increased 69% over the previous year, at nearly seven billion cubic feet of gas a day, with an 80% increase in gas exploration jobs. What about New Jersey?
Most residents of New Jersey might not realize it, but they may potentially be living over one trillion cubic feet of natural gas in a geologic formation known as the Newark Basin, which stretches from Mercer County in the central part of the state, to Bergen County in the northern part of the state. In addition, the Utica Shale, a rock formation that underlies the Marcellus Shale, stretches from Eastern Ohio all the way to Northwestern New Jersey. The Ohio Department of Natural Resources estimates that the recoverable Utica Shale potential is between 1.3 and 5.5 billion barrels of oil, and between 3.8 and 15.7 trillion cubic feet of natural gas. While the Utica formation estimates pale in comparison to the potential of the Marcellus Shale, they have attracted the attention of the oil and gas industries, which are now looking at ways to develop the formation, as well as the environmentalists, who seek to ban the fracking process. To date, not a single company has expressed interest in drilling in New Jersey, but geologists and industry experts say that such drilling could be commercially viable.
In 2011, the New Jersey State Legislature passed Senate Bill 2576, which would have permanently prohibited fracking in New Jersey. However, New Jersey Governor Chris Christie conditionally vetoed the measure and offered instead a one-year fracking moratorium stating that a permanent ban on the process was premature before the New Jersey Department of Environmental Protection and the federal Environmental Protection Agency had the opportunity to fully evaluate the safety of the practice. In a press release conveying his veto message, Governor Christie wrote:
I share many of the concerns expressed by the legislators that sponsored this bill and the environmental advocates seeking a permanent moratorium on fracking. We must ensure that our environment is protected and our drinking water is safe. . . . I am placing a one-year moratorium on fracking so that the DEP can further evaluate the potential environmental impacts of this practice in New Jersey as well as evaluate the findings of still outstanding and ongoing federal studies.
Governor Christie’s decision to conditionally veto the measure and instead implement a one-year moratorium on fracking pleased no one. Jeff Tittel, the director of the New Jersey chapter of the Sierra Club called the one-year moratorium a “joke” and accused the governor of “trying to have it both ways.” Meanwhile, the Marcellus Shale Coalition commented that the one-year moratorium “sends the wrong message” about the benefits of natural gas. The moratorium went into effect on January 17, 2012, and expired on January 17, 2013,  once again leaving New Jersey with no official policy on fracking in the state.
In 2012, the New Jersey Legislature passed a bi-partisan measure that would have prohibited the treatment and disposal of fracking waste in the State. Governor Christie, however, vetoed the bill, stating first that it was unnecessary since fracking was not occurring in the state and not likely to occur in the near future, and second that the bill would violate the “dormant commerce clause” of the U.S. Constitution. Supporters of the measure sought to override the veto, but were unsuccessful in whipping enough votes. Environmental advocates pushed for the bill over concerns that banning fracking waste would prevent toxins and radioactive materials from polluting New Jersey waterways. Industry voices said such a ban would be unnecessary.
Given the current political make-up of the state government, it is highly unlikely that there will be any changes to New Jersey’s policy on fracking and fracking waste. However, that does not mean that these issues will remain on the backburner. Some groups hope for another override attempt on the fracking waste bill, and the Assembly Environment and Solid Waste Committee again reported favorably on a permanent fracking ban, though the bill has not advanced. In a closely related matter, Liberty Natural Gas applied to the state for a permit to build a port 24 miles off of the New Jersey coast. State legislators have voiced concern over the plan, and Governor Christie rejected a similar plan in 2011. It remains to be seen how fracking policy in New Jersey will develop in the coming years.
* Jordan Hollander is a May 2014 J.D. Candidate at Rutgers School of Law-Camden and the Submissions and Symposium Editor for the Rutgers Journal of Law & Public Policy. This paper was prepared for Professor Timothy West’s course, “Oil & Gas Law and the Environment.”
 Natural Gas Drilling Overview, N.Y.C. DEP’T OF ENVTL. PROT., http://www.nyc.gov/html/dep/html/news/natural_gas_drilling_overview.shtml (last visited Oct. 2, 2013).
 James M. O’Neill, Is Fracking in New Jersey’s Future?, THE RECORD, Aug. 2, 2013, http://www.northjersey.com/news/bergen/Is_fracking_in_New_Jerseys_future.html.
 O’Neill, supra note 2. The U.S. Geological Survey that there is a 95% chance that the southern portion of the Newark Basin contains 363 billion cubic feet of gas and could contain as much as 1.6 trillion cubic feet. Id.
 O’Neill, supra note 2.
 See S. 2576, 214th Leg., 1st Sess. (N.J. 2010).
 Andrew Restuccia, NJ Gov. Christie Vetoes ‘Fracking’ Ban Proposal, Calls for Moratorium, THE HILL (Aug. 25, 2011, 3:24 PM), http://thehill.com/blogs/e2-wire/e2-wire/178257-gov-christie-vetoes-fracking-ban-proposes-one-year-moratorium.
 Press Release, Governor Chris Christie, Governor Chris Christie Stands Up for Sound Policymaking By Issuing One-Year Moratorium on Fracking (Aug. 25, 2011), http://www.state.nj.us/governor/news/news/552011/approved/20110825c.html.
 Restuccia, supra note 8.
 See Seth Augenstein, Fracking Moratorium Comes to an End in New Jersey, Star-Ledger, Jan. 18, 2013, http://www.nj.com/news/index.ssf/2013/01/fracking_moratorium_comes_to_a.html. There is a moratorium on fracking in the Delaware River Basin, which covers a portion of New Jersey. See Jared Kaltwasser, Trade Group Chief Says Fracking Unlikely in N.J. Anytime Soon, NJBIZ.COM (Jan. 18, 2013, 1:00 PM), http://www.njbiz.com/article/20130118/NJBIZ01/130119828/Trade-group-chief-says-fracking-unlikely-in-NJ-anytime-soon.
 Martin Bricketto, NJ Pols Won’t Fight Christie’s Veto of Fracking Waste Ban, LAW360 (June 24, 2013, 8:52 PM), http://www.law360.com/articles/452412/nj-pols-won-t-fight-christie-s-veto-of-fracking-waste-ban.
 Kaltwasser, supra note 12.
 Bricketto, supra note 13.
 Tom Johnson, Lawmakers Look to Ban Fracking in NJ and Neighboring States, NJSPOTLIGHT.COM (Feb. 12, 2013), http://www.njspotlight.com/stories/13/02/11/new-jersey-lawmakers-look-to-ban-fracking-at-home-and-in-neighboring-states/.
 Kevin McArdle, NJ Senator Wants to Block Natural Gas Port Off Jersey’s Coast, NJ101.COM (Aug. 20, 2013 4:13 PM), http://nj1015.com/nj-senator-wants-to-block-natural-gas-port-off-jerseys-coast/.
 Id.; see also Assemb. Res. 205, 215th Leg., 2d Sess. (N.J. 2013); S. Res. 120, 215th Leg., 2d Sess. (N.J. 2013).