Hydraulic Fracturing (Fracking), Federalism, and the Water-Energy Nexus

Abstract

While the actual and potential water impacts of hydraulic fracturing (“fracking”) are well-known and the subject of sometimes intense scholarly debate, few discussions to date have situated fracking within the larger legal and policy conundrum known as the water-energy nexus. This nexus acknowledges that, just as water supply and energy production are mutually dependent, so water policy and energy policy should also develop in tandem. Thus, the water-energy nexus demands that regulators view fracking’s intersections with water resources as more than “merely” an environmental law problem.

Developing water policy and energy policy in tandem, however, raises federalism issues that are relevant to the United States’s increasing reliance on fracking and shale gas to supply its natural gas needs. Fracking has already been the subject of serious federalism debates, but these debates have generally focused on whether an individual state or the federal government is the more appropriate regulator of fracking and its environmental impacts — i.e., the debate has concentrated around issues of how to fit fracking into more traditional governance structures for on-shore energy development, water resource management, and environmental regulation, all of which suggest that states should be the primary regulators. Viewing fracking through the lens of the water-energy nexus, however, both adds a broader context to this federalism debate and suggests that fracking should constitute both a significant focus of and potential testing ground for the increasing federal interest in integrating water management and energy policy.

Keywords: hydraulic fracturing, fracking, fracing, water-energy nexus, energy-water nexus, climate change, federalism