The (Re)Federalization of Fracking Regulation

Abstract

Controversies surrounding the practice of hydraulic fracturing, or “fracking,” have engaged the nation in a heated and broad ranging conversation about energy development and environmental protection in America. The debate over who should regulate fracking — the federal government or the States — has been front and center. This Article argues that a theoretical federalism analysis favors shared federal-state regulation of potential impacts on underground drinking water supplies and of hazardous waste management, and federal regulation of information disclosure, under the existing regimes created by our environmental laws. The Article makes at least four contributions to the literature on environmental federalism, in general, and on federalism and fracking, in particular. First, it sets forth a detailed theoretical argument in favor of federal regulation of fracking, and refutes theoretical arguments in favor of State regulation. Second, it provides a unique and extensive examination of the language, structure, and purposes of the Safe Drinking Water Act, along with its legislative history; this act of statutory interpretation provides much needed substance to what is too often an essentially political argument about who should regulate fracking’s potential to contaminate drinking water supplies. Third, it analyzes current state and federal regulation and prospective next steps through a federalism lens. Finally, the Article examines the issue of the appropriate scale of governance in light of the political science literature on policy diffusion. Ultimately, while the idea of the States serving as “laboratories for democracy” is an important one, it is not living up to its potential here, and federal intervention is the only way to achieve appropriate regulation of fracking’s environmental impacts.