Over the past few years, the use of hydraulic fracturing (“fracking”) by oil companies has greatly increased. Fracking is achieved by injecting high-pressure water and chemicals into subsurface rock, which fractures the rock and creates more space and pathways for oil and gas to come up through an oil well. This method has been highly controversial because, while it turns “useless” shale oil into large natural gas fields, critics claim that it leads to the contamination of underground water reservoirs and can increase the frequency of earthquakes.
A bill proposed in the House of Representatives, titled Protecting States’ Rights to Promote American Energy Security Act, has greatly compounded this controversy. The bill would effectively sideline the Federal Government from regulating fracking, leaving it up to the states unless a state does not regulate the practice. This bill was likely a response to potential Federal Government regulations on fracking, but it should be passed because a “one-size-fits-all” regulatory scheme would not be as effective as state regulations and it preserves state sovereignty.
By stepping on the state’s toes in this area, the Federal Government would be forcing the states to adopt a “one-size-fits-all” regulatory scheme where one is not needed. First, there is no evidence that the states are ill equipped to handle fracking regulations. In the past two years, over 100 bills across 19 different states have been introduced that relate to the regulation of hydraulic fracturing. Moreover, as the practice continues to expand, it is likely that state legislative oversight will grow as well. It is also important to note that the bill provides for Federal regulation when a state does not regulate the practice, therefore, if the situation arises where a state’s legislature does not feel confident or knowledgeable in the area of fracking regulation, it can defer to the Federal Government.
Second, it is likely that a “one-size-fits-all” scheme would not work in this area. Most importantly, this type of regulatory scheme would not be able to account for the fact that the geological makeup of states is very different. This scheme would effectively preempt state regulation, even though the states are well equipped to handle the regulation of fracking and are the most knowledgeable about their land’s geological makeup.
Finally, lawmakers across the country disagree as to the extent that fracking should be regulated. Therefore, by allowing the states to retain their sovereignty in this area, many different approaches to regulation could come to light and enable states to model their regulations after a state with successful regulations and comparable geology. While we will have to wait and see whether the bill will make it past Congress and the President, it would likely be a mistake to allow Federal regulation in this area.