Fracking: A Federal or a State Concern?

Wednesday, November 7, 2012, by Lev Gabrilovich

Slick water hydraulic fracturing, or “fracking,” may not have been a big issue in the presidential election, but information regarding it has been plastered on news aggregation sites and the walls of bohemian coffee shops for over a year now. Put simply, fracking operations involve injecting pressurized water and sand into shale rock formations to gain access to trapped natural gas. The process creates thousands of jobs and cheapens energy generation. However, this process also has a famous dark side. The chemicals used in fracking may poison ground water and the extraction process may poison the air.

Naturally, a plethora of regulation is inherent in such an economically preferable—yet potentially dangerous—activity. But which entity should regulate fracking, the states or the federal government?

In a recent blog post, Florida State University’s law professor Hannah Wiseman cites different arguments for varying federal regulation. On the one hand, traditional issues in federal regulation, such as issues in pollution across state boundaries and an incentivized “race to the bottom,” indicate that the federal government should regulate areas of traditional federal jurisdiction, such interstate effect areas and the “Waters of the United States.” On the other hand, the federal government can regulate fracking as it does other polluters under the Clean Air Act and the Clear Water Act, and regulate through “dual federalism.” Under this model, the federal government would set baseline standards, which set a pollution floor for the states. Similar to the regulations under some provisions of the Clean Air Act, states would be required to create and implement management plans for the pollution risks, based on established best practices for fracking. If the states do not adequately regulate, then the federal government takes over the process.

Both sides certainly have their merits. The traditional jurisdictional approach is politically more attractive in relation to the current state’s rights ideological debates. However, according to Harvard Law School professor Jody Freeman, this method could result in an uneven “patchwork of regulation,” which could cause both overregulation and under-regulation. A regulatory framework mimicking the Clean Air Act can make sense, considering the fact that the federal government has been regulating pollution throughout the several states since the Nixon administration. The reason behind the lack of federal regulation at this time is a complex system of regulatory exceptions by the U.S. Environmental Protection Agency. Due to the economic benefit of fracking, and the ecological benefits of natural gas energy instead of coal energy, Washington is reluctant to allow regulations that could stifle natural gas development. However, as Professor Jody Freeman argues, not regulating such a potentially harmful practice could result in ecological disaster.

Currently, some states have updated their natural resources regulations to adapt to fracking. Specifically, both West Virginia and Pennsylvania—famous for their coal production—have updated their regulations. Only time will tell whether state action will be enough to protect the public from the dangers of fracking, while still reaping the benefits.