North Dakota Expertise: A Chance to Lead in Economically and Environmentally Sustainable Hydraulic Fracturing

22 Pages Posted: 16 Nov 2012 Last revised: 25 Mar 2015

See all articles by Joshua P. Fershee

Joshua P. Fershee

Dean & Professor of Law; University of North Dakota - School of Law; West Virginia University - College of Law

Date Written: 2011


North Dakota is uniquely, and largely favorably, situated to benefit from hydraulic fracturing, and has already reaped many such benefits. During the recent economic crisis, North Dakota’s housing market has been stable, unemployment has been remarkably low, and the state has maintained a strong and increasing budget surplus at a time when many states were operating budget deficits. But these benefits have not come without some costs.

This Article seeks to put the current North Dakota oil boom in context and help provide a path for developing legislative and regulatory policies that prolong and reinforce sustainable and beneficial oil development. The Article first discusses the current state of the North Dakota oil industry, arguing that the current oil economy is different from prior oil booms in the state and explaining how the North Dakota experience is different from (and in many ways better than) the current state of shale gas plays in the United States that are also using hydraulic fracturing. The next section explains the potential collateral damage from hydraulic fracturing related to social and environmental harms that flow from North Dakota’s oil industry resurgence. This potential damage, unchecked, could stand in the way of the economic promise of the state's oil industry.

Finally, the Article concludes with suggestions about how North Dakota can address many of the social and environmental concerns potentially linked with hydraulic fracturing with the goal of supporting and sustaining long-term growth and development while minimizing concomitant harms. These suggestions include: (1) building upon technological expertise already available in the state to monitor environmental harms, (2) proactively protecting wildlife in an economically sustainable manner, and (3) adopting best practices regulations so that the most egregious potential environmental harms related to hydraulic fracturing become "never events." As the largest and most successful example of the use of hydraulic fracturing, these lessons and potential policies begin with North Dakota, but provide a framework for hydraulic fracturing policy throughout the United States.

Keywords: hydraulic fracturing, fracking, oil, natural gas, gas, energy law, regulation, North Dakota

JEL Classification: Q4, Q40, Q41, Q48, Q13, Q21, Q28, Q3, Q31, Q31, Q33, Q38

Suggested Citation

Fershee, Joshua Paul and Fershee, Joshua Paul and Fershee, Joshua Paul, North Dakota Expertise: A Chance to Lead in Economically and Environmentally Sustainable Hydraulic Fracturing (2011). North Dakota Law Review, Vol. 87, No. 4, p. 487, 2011, WVU Law Research Paper No. 2012-15, Available at SSRN:

Joshua Paul Fershee (Contact Author)

Dean & Professor of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States
402-280-2348 (Phone)

HOME PAGE: http://

West Virginia University - College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States
304-293-2868 (Phone)


University of North Dakota - School of Law ( email )

P.O. Box 9003
Grand Forks, ND 58202-9003
United States
701-777-2261 (Phone)


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