Assessing the Silica (Frac) Sand Mining Environmental Regulatory Frameworks in Minnesota and Wisconsin: Who Has a Better Plan for Digging, the Gophers or Badgers?

Authors

William Miley, Hamline University School of Law

Abstract

In recent years silica (frac) sand mining activity in Minnesota and Wisconsin has grown significantly due to high demand for the sand from the hydraulic fracturing (or “fracking”) oil and gas extraction industry. Consequently, there has been much debate in the region over the proper state and local regulatory controls and overall framework to adequately protect against health and environmental impacts associated with the mining activities while also avoiding undue regulatory burdens that hinder economic development. This article analyzes the silica sand mining regulatory schemes in Minnesota and Wisconsin to determine if this booming industry is met with appropriate oversight.

It appears that an adaptive regulatory approach over silica sand mining that integrates state and local oversight authority and promotes cooperative functioning between the state and local regulators is best suited to provide thorough environmental controls and promote regulatory efficiency. Several aspects of Minnesota and Wisconsin’s silica sand regulatory frameworks meld to create effective state-local adaptive approaches in each state, including: broad local governmental unit (LGU) authority to regulate land use to promote its communities’ best interests; state regulators providing technical assistance to local regulators; state-local regulator teamwork to strengthen local regulation and implement oversight programs; and state agencies inviting stakeholder input to guide regulatory changes.

However, Minnesota and Wisconsin diverge with regard to recent legislative activity focused on silica sand mining in each state. In 2013, Minnesota enacted laws that create additional state oversight programs to address public concerns and facilitate a more cooperative state-local regulatory approach to silica sand mining. Wisconsin, on the other hand, has recently legislated heightened burdens on LGUs to control silica sand mining and a bill (S.B. 349) is currently under consideration that would significantly limit local and state authority to regulate sand mining while also transitioning to a state primacy regulatory scheme. Thus, it seems that Minnesota is taking steps in the right direction to develop a highly effective state-local regulatory framework that meets the needs for all stakeholders. But Wisconsin is treading on shaky ground that threatens to erode its strongly adaptive silica sand regulatory scheme, which may well lead to negative results for industry, public health, and the environment.

Recommended Citation