American law and jurisprudence on fracking - 2012

The United States may soon go from natural gas importer to exporter thanks to advancements in the use of hydraulic fracturing and horizontal drilling that have been hailed as revolutionary in their impact. These technologies and their broad application across a number of states, some with little experience in oil and gas drilling, have been met with appreciation, invective, and anxiety. For many, the exploitation of hydrocarbon-bearing shale formations carries the promise of transforming the prospects of the oil and gas industry, as well as world energy trade, geopolitics, and climate policy. But, as we say in Texas, no matter how flat the pancake there is always another side, and the practice of hydraulic fracturing is not without its critics. The critics come in several guises, not surprisingly the environmentalists, a coterie of whom regard this technology’s advancement as a broad-scale threat to water, air, and terra firma. There are also the regulators who, at the federal, state, and local levels, are clamoring to protect their turf or carve out new turf from existing regulatory regimes. This is the backdrop for this chapter, an earlier version of which in 2010 sought to critically examine the revolution inhydraulic fracturing from a number of perspectives. Recognizing the subject as dynamic from the technical, legal, regulatory, environmental, economic, and political perspectives, the authors in this 2012 chapter seek to capture its current jurisprudential status with appropriate commentary. We do not expect that the last chapter on this subject is being written or will be written in the near term, as this revolution’s life cycle is expected to span a period of inestimable duration.