Fracking the Public Trust

Abstract

Climate change presents an ever more urgent threat, and earlier in 2019, atmospheric carbon dioxide levels reached an all time high for recorded history. Current federal and state policies promoting fossil fuel extraction mean that future governments will have to look very seriously at leaving fossil fuels in the ground, if our society wants to have any hope of avoiding catastrophic climate change.

One of the biggest obstacles to leaving fossil fuels in the ground is the threat of massive takings liability for any government that dares to slow or prevent the extraction of fossil fuels. This has been particularly salient in the ongoing debates over fracking, which has enabled a boom in oil and gas production in the United States. Takings liability is the boogeyman that state and local regulators see around every corner, and lobbyists for the oil and gas industry raise the specter of takings liability to oppose even the most modest of regulatory proposals that affect their bottom line. However, the fear of takings liability is misplaced.

The threats posed to society now as well as to future generations by unchecked fossil fuel development create ample room for governments to regulate or even ban extraction of fossil fuels as part of their obligations under the public trust doctrine. Traditionally, the public trust doctrine was developed to protect common resources such as navigable rivers, but in modern times it has been expanded to other trust resources such as the atmosphere. Thus, the public trust doctrine acts as a background principle of law that insulates regulation of fracking from takings liability even for total takes under Lucas v. S.C. Coastal Council. This paper will explore the application of the public trust doctrine to fracking, specifically in regards to regulations designed to prevent the harms from continued emissions of greenhouse gases as a result of burning fossil fuels.

Keywords: oil and gas, oil, gas, fracking, fracing, hydraulic fracturing, takings, property, public trust, public trust doctrine, regulation, climate, climate change