FRACKING ACROSS THE GLOBE: THE DEBATE IN THE UNITED STATES AND EUROPE AND THE ROLE OF FEDERAL, STATE, AND LOCAL REGULATIONS.

• Author: Karam, Lauren

1. INTRODUCTION

   When facing the global energy needs of today, hydraulic fracturing (fracking), a method of natural gas extraction, has been controversial in the United States as well as in various countries in Europe. (1) While fracking proponents argue the economic benefits of fracking, many environmentalists object to the potential effects that fracking could have on water, air, and land. (2) In various states throughout the United States, fracking has delivered promising results along with environmental concerns. (3) Similarly, some European nations, such as the United

   Kingdom and Poland, have experienced both the benefits and detriments of fracking. (4) Recent fracking development indicates that there are insufficient regulations in both the United States and Europe. (5)

   This Note explains the regulatory framework in the United States, the United Kingdom, and Poland. (6) It further explores the regulatory gaps in various states within the United States as well as the regulatory framework in European nations. (7) Part II will discuss the history of fracking, explaining how it emerged in each nation. (8) Part III will show the flaws in the current regulations in the United States, the United Kingdom, and Poland. (9) Part IV will analyze the best approaches going forward--including collaborative laws at the local, national, and international level. (10) Lastly, Part V will conclude with emphasizing the gaps in fracking regulations and the need for more effective laws in the United States and Europe. (11)

2. HISTORY

   1. The United States

      1. Fracking Origins in the United States

         Drilling for natural gas has been a common practice in the United States for over a century. (12) Although fracking has been used since the 1940s, it was mainly done in conventional vertical oil and gas wells. (13) In the 1990s, an improvement in technology allowed for fracking to be utilized in unconventional horizontal drilling. (14) Natural gas trapped within shale formations is difficult to extract, and it is necessary to use fracking technology to capture the gas. (15) Advancements in technology made accessible natural gas that was previously impossible to extract. (16)

      2. Federal Environmental Laws in the United States

         In the late 1900s, Congress passed environmental protection legislation. (17) This included the creation of the EPA in 1970. (18) The EPA is an executive agency responsible for enforcing federal environmental laws. (19) The Clean Air Act, passed in 1970, regulates air emissions and authorizes the EPA to establish National Air Quality Standards. (20) Two years later, in 1972, Congress enacted the Clean Water Act, which regulates the discharge of pollutants into U.S. waters and creates quality standards for surface waters. (21) The Safe Drinking Water Act (SDWA), passed in 1974, protects drinking water quality in the United States in both above ground and underground sources. (22) Continuing this trend of environmental law making, in 1980, the Comprehensive Environmental Response, Compensation, and Liability Act (CERLCA) established the Federal Superfund that is used to clean up abandoned hazardous waste sites; CERLCA also applies to accidents, spills, and other environmental emergencies. (23) In 1999, Congress passed the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, which pertains to flammable fluids and "public access to off-site consequence analysis data." (24) During the George W. Bush administration, the Energy Act of 2005 was passed; this Act exempted fluids used in fracking that were otherwise regulated under the Clean Air Act, Clean Water Act, Safe Drinking

         Water Act, and CERCLA. (25) In 2007, President Bush signed the Energy Independence and Security Act (EISA), which had the goal of improving the energy performance of the federal government and moving the United States towards stronger energy security. (26) During these decades of environmental lawmaking, no federal laws have been created that directly regulate fracking. (27)

      3. State Environmental Regulations

         1. Local Moratoria and Bans in Colorado

            Since local governments traditionally have land use and zoning powers, many municipalities have taken local measures in attempt to regulate fracking. (28) In 2012, the City of Longmont, Colorado voted to prohibit fracking within their jurisdiction. (29) A year later, four other communities in Colorado, namely, Boulder, Broomfield, Lafayette, and Fort Collins, approved fracking bans in their towns. (30) In response to these regulations, gas industry groups sued the municipalities on the grounds that the state has implied preemption. (31)

         2. Local Fracking Bans in New York State

            In 2011, several municipalities in New York State took local action to either temporarily or permanently ban fracking within their jurisdiction. (32) New York sits atop the Marcellus Shale, a natural gas formation that spans from the Catskill Mountains in New York through Pennsylvania, Ohio, and West Virginia. (33) The Towns of Dryden, NY and Middlefield, NY prohibited fracking through their home-rule municipality zoning powers. (34) Consequently, gas companies owning land in both towns brought lawsuits seeks to get the local ordinances overturned. (35)

   2. Fracking in Europe

      Similar to the goals of the United States, the European Union (E.U.) also aims to be energy independent. (36) Due to unreliable relations with Russia, a large oil and natural gas supplier, it is desirable for the European Union to establish energy security. (37) Therefore, when fracking technology became a feasible means of extracting natural gas, many European nations were eager to exploit their resources. (38) Poland, for example, has one of the largest shale reserves in Europe and was largely supportive of fracking and eager to begin. (39) Beyond energy security, the economic benefits of fracking were particularly appealing. (40)

      On the other hand, many European nations--such as France and Bulgaria--were threatened by the concept of fracking and almost immediately enacted moratoria on fracking in their countries. (41) Looking at the United States as a model, these nations feared detrimental environmental impacts, such as the amount of water needed for fracking and the subsequent management of the toxic wastewater after a well is fracked. (42) Other environmental concerns, such as air and land pollution, were also contested in the fracking debate. (43)

      1. Fracking Origins in the United Kingdom

         Natural gas production has strong roots in the United Kingdom. (44) After the 1979 oil crisis, the United Kingdom began to domestically produce oil and gas. (45) In 2011, however, fracking operations in the United Kingdom were halted due to an earthquake. (46) Although one British energy firm agreed that the earth tremors were most likely due to fracking in the area, they argued that it was a rare instance and "unlikely to occur again." (47) British Prime Minister David Cameron promoted fracking for its potential to create jobs and stabilize Britain's economy. (48) Since 1970, the United Kingdom's natural gas production has fluctuated, mostly decreasing overtime, whereas imports have grown substantially. (49)

      2. Fracking Origins in Poland

         During European natural gas exploration, companies discovered that Poland possesses one of the largest shale reserves in all of Europe. (50) The abundance of natural gas made Poland a very desirable location for fracking. (51) When first discovered in 2012, the Polish Geological Institute estimated that Poland had between 346 and 768 billion cubic meters of shale gas onshore that could be recovered via fracking. (52) Politically, this excited Polish leaders, since Poland would like to sever their reliance on Russia for natural gas. (53) Poland, which was suffering economically during the time fracking in Europe became feasible, was eager to profit from exploiting their resources. (54)

3. Facts

   1. The United States

   1. Modern Federal Landscape in the United States

      Fracking is still being debated throughout the United States. (55) Although there has not been any new federal legislation enacted, there is currently a bill in Congress to repeal the Energy Policy Act of 2005. (56) The FRAC Act, first introduced in 2011, would reverse the exemption that fracking currently has under the Energy Policy Act of 2005. (57) If passed, the FRAC Act would require companies to disclose chemicals and obey the Safe Drinking Water Act. (58) In 2015, the Obama Administration passed a regulation requiring companies to disclose the chemicals used during the fracking process, but this regulation was struck down in the federal courts and is likely to be undone with a new executive in 2016. (59)

      Trump has also expressed his ambitions to make the United States a leader in natural gas production, thus making the country independent from foreign sources. (63)

   2. Modem State Regulatory Practices

      1. State Preemption in Colorado

         In May 2016, the Supreme Court of Colorado decided two landmark fracking cases, both concerning the local regulation of fracking and state preemption. (64) In the first case, City of Fort Collins v. Colorado Oil & Gas Association, (65) the Colorado Supreme Court held that although the Oil and Gas Conservation Act (Act) did not impliedly preempt a locality's authority to enact land use regulations applicable to oil and gas operations, there was an operational conflict between Fort Collins's moratorium and the Act. (66) The city's moratorium banned all fracking within its jurisdiction for five years, which in practice "renders the state's statutory and regulatory scheme superfluous." (67) The Act articulates the state's strong interest in oil and gas development, delegating this task to the Colorado Oil and Gas Conservation Commission. (68)

         In the second case, City of Longmont v. Colorado Oil and Gas Association, (69) the Colorado Supreme Court held that the Colorado Oil and Gas Conservation Act also preempted...