Fracking and Federalism Choice

Abstract

In this Response to 'Federalism, Regulatory Lags, and the Political Economy of Energy Production,' Professor David Spence's first-to-market attempt to situate the highly charged political controversies surrounding hydraulic fracturing ("fracking") in the frame of federalism theory, I argue that the question of whether states or the federal government should regulate fracking has already been answered, and that but for outdated and underjustified exemptions to existing environmental statutes, fracking is already under the jurisdiction of federal regulators. In addition, I add to Professor Spence's attempt to match fracking's environmental impacts to the proper scale of governance in three ways. First, I examine several rationales commonly used to justify decentralization, rather than federalization, of environmental law, and find that they do not weigh in favor of exclusive state authority over fracking. Second, I argue that given the fast-paced growth in drilling activity across the country, fracking's environmental impacts should be analyzed with regard to their cumulative effects. When so viewed, it is clear that fracking gives rise to interstate, and even national, problems that must be addressed accordingly. Third, I argue that widespread impacts on rural America weigh in favor of federal regulation. In conclusion, I suggest that fracking's federalism choice question is an important one, and that the theoretical approach can help inform the political and regulatory process.