Edited by Jordi Jaria i Manzano, Nathalie Chalifour and Louis J. Kotzé
Chapter 3: Ten good practices in environmental constitutionalism that can contribute to sustainable shale gas development
AbstractUnconventional shale gas development (also sometimes known as ‘hydrofracturing’ or ‘fracking’) invites new legal responses for fostering environmental protection and sustainability. Chief among these is environmental constitutionalism, in which a country or sub-national unit adopts explicit constitutional provisions that advance environmental outcomes, policies or procedures. This chapter examines how environmental constitutionalism might promote sustainable practices in unconventional shale gas development in the context of ten ‘good practices’, touching on text, implementation, adjudication and process, among other areas. It then contemplates how the recent court decision of Robinson Township et al. v. Commonwealth of Pennsylvania embodies these good practices in the context of controversial state action to promote unconventional shale gas development in the State of Pennsylvania in the United States. Section I provides a brief primer on unconventional shale gas development. Section II examines ten good practices in environmental constitutionalism, focusing on how these inform the sustainable development of unconventional shale gas. Section III then examines the extent to which Robinson Township embodies these good practices in context. We conclude that, fully realized, environmental constitutionalism can meaningfully contribute to sustainable practices in unconventional shale gas development.
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