Lisa A. Cumming*
Abstract
The oil and gas industry has fought to ensure that the lion’s share of
the power to regulate hydraulic fracturing (“fracking”) remains with the
states, as opposed to with the federal government. In response to the
known negative effects of fracking, some states have heavily restricted
fracking or banned the process entirely, resulting in fracking regulations
that vary widely from state to state. In the absence of a comprehensive
federal regime regulating fracking, citizens in states with lax regulations
are more vulnerable to the negative health and environmental effects of
fracking.
Now, more studies are revealing how fracking can harm human
health and the environment. Particularly devastating is fracking’s effect
on drinking water. The Environmental Protection Agency (EPA) has
found that fracking can poison drinking water during all stages of the
fracking process. Thus, drinking water is at risk in all jurisdictions that
allow fracking to occur.
In response to the risks fracking poses to human health and the
environment, some states have passed increasingly strict fracking
regulations. This response has created great variation between states’
regulatory regimes. Greater discrepancies in state fracking regulatory
regimes will negatively affect oil and gas corporations by increasingly
narrowing where such corporations are able to operate. Thus, oil and gas
corporations, under the guidance of the corporate social responsibility
(“CSR”) doctrine, should lobby for the federal regulation of fracking
under the Safe Drinking Water Act (SDWA). The SDWA would provide
for increased protections of drinking-water resources without imposing
too high a regulatory-compliance burden on oil and gas corporations.
*J.D. Candidate, The Pennsylvania State University, Penn State Law, 2021.