Table of Contents

Shale Gas and the Future of Energy

Shale Gas and the Future of Energy

Law and Policy for Sustainability

New Horizons in Environmental and Energy Law series

Edited by John C. Dernbach and James R. May

The rapid growth of shale gas development has led to an intense and polarizing debate about its merit. At the 2012 United Nations Conference on Sustainable Development, countries around the world concluded that the transition to sustainability must be accelerated. This book asks and suggests answers to the question that has not yet been systematically analysed: what laws and policies are needed to ensure that shale gas development helps to accelerate the transition to sustainability?

Chapter 9: Regulating shale gas production for sustainability: the federalism questions

David B. Spence

Subjects: environment, energy policy and regulation, environmental management, environmental politics and policy, law - academic, energy law, environmental law


The shale boom has brought both transformational costs and transformational benefits to the major American shale plays. The costs include disruption of quiet communities (with truck traffic, noise, and social and economic disruption), and increased risks of water contamination, disruption of ecosystems, seismic activity, and air pollution. The benefits have been primarily economic, taking the form of lower energy prices, jobs in shale gas production areas and elsewhere, increased investment in industries for which natural gas is an important input, and revenue flows to state (and a few local) governments.  Second-order environmental benefits include the environmental benefits associated with substituting natural gas for coal in the American electricity mix. The debate over how to produce shale gas sustainably has invokes not only disagreement on the merits question – how to allocate the risks and benefits of fracking – but also the federalism question -- which level of government ought to make that allocation decision. Because well-known behavioral biases influence our perceptions of the risks of fracking, these two sets of questions are interrelated. Should policymakers rely primarily on scientific risk analyses in devising a sustainable shale gas production regime, or should they be responsive to sincerely-held (local) concerns about the dangers of fracking?  Where should the locus of policymaking lie -- with the federal government, or with state and local governments? This chapter addresses those both sets, and concludes that: (1) there is no persuasive case for a comprehensive federal licensing regime for shale gas production based on traditional federalism concerns; but (2) because the popular debate over fracking is fraught with biases that inhibit the development of a clear picture of fracking’s risks, policymakers should work to insulate the policy decision process from those biases.

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