The Private Role in Public Fracturing Disclosure and Regulation
3 Harvard Business Law Review Online 49, 2013
18 Pages Posted: 22 Dec 2012 Last revised: 15 Feb 2013
Date Written: December 1, 2012
Recent domestic growth in oil and gas natural gas production from shales and sandstones called “tight” formations — largely enabled by a modified technology called slickwater hydraulic fracturing — has driven both economic growth and environmental concerns. Public concerns have often focused on the chemicals used in the fracturing process, yet federal regulations requiring disclosure of chemicals are weak. In the midst of initial “threats” of federal intervention, industry — along with state regulators — developed a website that enabled chemical disclosure. State regulations later mandated disclosure through this website, or allowed it as one option within a mandatory disclosure regime. Independently, gas companies also have begun to experiment with less toxic fracturing chemicals and to take other substantive efforts toward identifying and limiting the risks of tight oil and gas development. This example of a public-private effort to enhance informational access in fracturing, and to make limited substantive changes, may offer important lessons for other oil and gas regulation moving forward. Agencies and policymakers must make independent assessments of risks and avoid directly adopting industry solutions if those solutions are incomplete or avoid needed change. But oil and gas operators have shown how public action, combined with industry coordination and innovation, can sometimes inspire productive responses to the risks of unconventional oil and gas production.
Keywords: hydraulic fracturing, fracing, fracking, hydrofracking, disclosure
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