Fracking and federalism: a comparative approach to reconciling national and subnational interests in the United States and Spain.

Author:Lin, Albert C.
 
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  1. INTRODUCTION II. HYDRAULIC FRACTURING IN SPAIN A. Spain's Governmental Structure B. Environmental Regulation C. Hydrocarbons and Their Regulation in Spain III. Hydraulic Fracturing Regulation in the United States A. State and Local Oversight B. A Limited Federal Role IV. DEBATES OVER FEDERALISM & HYDRAULIC FRACTURING REGULATION IN THE UNITED STATES A. Efforts to Match Hydraulic Fracturing to the "Right" Regulator 1. Background 2. Applying the Matching Factors to Hydraulic Fracturing a. Environmental and Social Effects b. National Interests c. Relative Incentives to Regulate d. Uniformity, Variety, and Experimentation e. A Summary of Matching Principle Arguments B. Beyond the Matching Principle 1. Shortcomings of the Matching Approach 2. An Alternative to Matching: Dynamic Federalism C. Federalism and Energy Facility Regulation V. MOVING FORWARD A. Spain B. United States VI. Conclusion I. INTRODUCTION

    Unconventional oil and gas activity--in particular, the combined use of hydraulic fracturing and horizontal drilling techniques to extract previously inaccessible resources--raises concerns at multiple scales and in different policy dimensions. (1) Such activity can generate local environmental hazards, including drinking water contamination, chemical spills, and air pollution. (2) These hazards often extend beyond the immediate vicinity of an individual fractured well, and the cumulative effects of multiple wells may be regionally or nationally significant. The concerns that accompany hydraulic fracturing, moreover, are not limited to conventional pollution. Hydraulic fracturing implicates other environmental concerns, most notably climate change, as well as nonenvironmental concerns regarding national security and the character of local communities. As attention turns to fracturing's more immediate hazards, its long-term repercussions for energy systems and fossil fuel reliance merit attention as well.

    The concerns surrounding hydraulic fracturing have prompted controversy as various nations adopt the technology or contemplate doing so. In the United States, where these techniques were developed and have been widely deployed, some have called for stricter state oversight, whereas others contend the federal government is better situated to rein in potential hazards. (3) In Europe, Spain and other countries are eyeing hydraulic fracturing as a means of accessing shale hydrocarbons but face public opposition, particularly in regions that expect to bear the brunt of drilling activity. (4) The controversy in Spain exemplifies the conflict between national authorities eager to reduce reliance on volatile foreign energy supplies, and locals worried about environmental and social impacts.

    This Article examines the tensions between local and national oversight of hydraulic fracturing in Spain and the United States. In the United States, current regulatory regimes treat hydraulic fracturing's hazards largely as if they were limited to local pollution. (5) States are generally in charge of oversight, and the federal government passively provides support to fracturing activity through deregulation. (6) In Spain, by contrast, the law treats hydraulic fracturing policy primarily as a matter for determination by the national government, which has focused on policy implications for energy security and economic development. (7) Several of Spain's autonomous regions nonetheless have resisted the national government by enacting hydraulic fracturing bans. Consideration of the controversies surrounding hydraulic fracturing oversight in the United States and Spain yields a valuable comparison of how to incorporate national and local concerns regarding resources management.

    Hydraulic fracturing activity ultimately implicates both national and local interests. Both sets of interests require representation. One approach to the matter involves the matching principle, which counsels matching regulatory jurisdiction to the geographic scope of an environmental problem. Dynamic federalism, a theory that recognizes federal and state authorities as alternative, overlapping centers of power, presents another approach. Drawing insights from both approaches, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems found in Spain and the United States.

    Part II of this Article discusses the controversy in Spain over hydraulic fracturing. Part III turns to the United States and examines the respective roles of the states and federal government in the oversight of hydraulic fracturing. Part IV canvasses the main arguments in the debate regarding the level of government that should be engaged in such oversight, drawing on insights from both the matching principle and dynamic federalism. Finally, Part V suggests legal modifications that can better account for regional and local concerns as Spain crafts a hydraulic fracturing policy, and it also offers recommendations for more fully integrating relevant concerns into hydraulic fracturing policy in the United States.

  2. HYDRAULIC FRACTURING IN SPAIN

    One substantial difference between the legal systems of Spain and the United States involves the distribution of powers between different levels of government. Spain is a unitary state from which power can be devolved to subnational governments, whereas the United States is a federal state in which power is shared between the federal government and the states, which possess power independent of the federal government. (8) Notwithstanding this difference, a comparison of these countries' respective approaches to hydraulic fracturing regulation can be instructive in developing options for allocating regulatory authority.

    1. Spain's Governmental Structure

      To appreciate the debate over hydraulic fracturing oversight in Spain, a basic understanding of the organization of Spanish government is useful. The Spanish Constitution, adopted in 1978, declares Spain to be a unitary state that "recognizes and guarantees the right to autonomy of the nationalities and regions of which it is composed." (9) Although a unitary state is typically characterized by a supreme central government, the Spanish system has been described as "increasingly federal" in the sharing of power with subnational units. (10) The constitution allows for the decentralization of power through a process in which Spain's Parliament (the Cortes Generales) recognizes autonomous communities (Communidades Autonomas) and enacts statutes of autonomy (Estatutos de Autonomia). (11) The years following the adoption of the Spanish Constitution witnessed the creation of seventeen autonomous communities encompassing all of Spain's regions. (12) These and other developments have served as important means of devolving power from the central state. (13) Nonetheless, ongoing struggles for greater autonomy in several regions demonstrate that the creation of autonomous communities has not fully resolved the tensions between national and regional control. (14)

      Autonomous communities may legislate according to the terms of their statutes of autonomy, and may assume exclusive competence over planning law and other specified matters. (15) In addition, at the local level, municipalities lack comprehensive legislative power but may implement national or regional laws through municipal ordinances. (16) In areas of overlapping competence, national law prevails if national and subnational law conflict. (17) Moreover, the Spanish Constitution reserves to the national government the general authority to collect taxes, with limited exceptions, and provides for distribution of a portion of collected revenues to the autonomous communities. (18) Thus, on paper at least, the power and funding of the autonomous communities--and indeed their very existence--are subject to the will of the national government. (19) In crafting the Spanish Constitution, however, its framers deliberately left a number of matters unresolved. (20) It is therefore perhaps not surprising that in practice, the autonomous communities have claimed substantial powers in their respective statutes of autonomy, and have developed various means of exercising autonomy. (21)

    2. Environmental Regulation

      With respect to environmental matters specifically, the Spanish Constitution envisions a distribution of authority somewhat similar to the cooperative federalism approach predominant in U.S. environmental law. (22) Namely, the national government enjoys the competence to enact "[b]asic legislation on environmental protection, without prejudice to the powers of the Autonomous Communities to establish additional protective measures." (23) The autonomous communities have generally assumed the power to enact such additional measures and also possess the authority to execute and enforce national environmental laws. (24) The Spanish Constitution also specifies the distribution of authority for various other subject areas that affect the environment. (25) For example, the constitution declares the bases of the energy and mining regimen to be under exclusive national competence. (26) The coordination and oversight of general economic planning are likewise within the sole authority of the national government, as is the management of water resources extending beyond a single autonomous community. (27)

      In addition to more conventional forms of environmental regulation, such as pollution limits and permit requirements, Spain also employs environmental taxes, which are an increasingly important means of asserting regional control. (28) Although general taxing authority lies in the hands of the national government, autonomous communities can enact environmental taxes so long as they do not duplicate taxes imposed by the national or local authorities. (29) The national government has put in place relatively few environmental taxes, leaving substantial room for autonomous...

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