Open Access BASE2013

The (Re)Federalization of Fracking Regulation

In: https://doi.org/10.7916/D8X63M4V

Burger, Michael

Open Access

Abstract

The purpose of this Article is to defend environmental law's federalism choices from the insinuation that they do not match fracking's environmental impacts and to demonstrate that fracking does indeed belong under the umbrella of federal law. The Article proceeds in four Parts. Part I establishes the federalism-choice analysis framework and applies it to both state and federal regulation of fracking. Part II buttresses the conclusion that federal regulation of potential impacts on underground drinking-water supplies is appropriate through a fresh and extensive examination of the statutory scheme and legislative history of SDWA. Part III offers further support for federal law's applicability to fracking through a more abbreviated look at RCRA and EPCRA. Part V details the ongoing trend toward federalization of fracking regulation under environmental law, offers a new federalism analysis of several possible regulatory measures, and proposes that, in the absence of direct federal regulation, either the federal government or the states should ramp up efforts to promote policy diffusion and the spread of best practices. A brief conclusion follows.

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