2013 Articles

Fracking and Federalism Choice

Burger, Michael

In response to David B. Spence's "Federalism, Regulatory Lags, and the Political Economy of Energy Production," I offer a set of constructive challenges to his article. In Part I, I argue that fracking’s federalism-choice question has already been answered, and that but for the outdated and underjustified exemptions mentioned above, fracking is already under the jurisdiction of federal regulators. In Part II, I conduct an alternative federalism-choice analysis that adds to Professor Spence’s analysis in three ways. First, I balance his analysis by examining rationales commonly used to justify decentralization, rather than federalization, of environmental law. 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.