Shaping State Fracking Policies in the United States

• Date: 01 June 2017
• Published date: 01 June 2017
• DOI: 10.1177/0160323X17712555
• Subject Matter: Reviews & Essays

Reviews & Essays
State and Local Government Review
2017, Vol. 49(2) 140-150
Shaping State Fracking
ª The Author(s) 2017
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DOI: 10.1177/0160323X17712555
An Analysis of Who, What,
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and How
Charles E. Davis1
Abstract
This article presents an overview of research focusing on how state and local governments have
regulated oil and gas over the past decade following the expanded industry use of new technologies
like hydraulic fracturing (fracking) and horizontal drilling. A consequence of fracking was a substantial
increase in energy production accompanied by the emergence of policy concerns about how
resource development and jobs could be balanced with efforts to maintain environmental quality.
Researchers have dealt with three key concerns in the following sections: (1) determining whether
state and local officials can each play an important role in developing policies affecting oil and gas
drilling activities, (2) examining how state regulators deal with environmental and health impacts
associated with fracking, and (3) looking at how state policy decisions have been shaped taking
into account both state-level political and economic characteristics and agency resources and
political will.
Keywords
state energy policy, environmental politics, fracking, substate federalism
State and local government officials have
will be met well into the future, while others
become increasingly involved in the enactment
tout the expansion of well-paying jobs related
and implementation of policies dealing with the
to fracking operations and ancillary economic
regulation of companies that extract oil and nat-
activities (Barth 2013; Sovacool 2014). How-
ural gas in the United States. The rapid expan-
ever, the surge in industry investment and
sion of resource development over the past
drilling activities in states with shale gas
decade has been driven by the energy industry’s
reserves (also known as plays) have also
embrace of technological advances such as
hydraulic fracturing (better known as fracking)
combined with horizontal drilling. The emer-
1 Department of Political Science, Colorado State Univer-
gence of fracking has generated considerable
sity, Fort Collins, CO, USA
optimism about the future of domestic energy
supplies. Energy analysts at the U.S. Energy
Corresponding Author:
Charles E. Davis, Department of Political Science, Color-
Information Administration suggest that
ado State University, B351 Clark Bldg., Fort Collins, CO
shale-based oil and gas reserves are sufficiently
80523, USA.
robust to ensure that domestic energy needs
Email: charles.davis@colostate.edu

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Davis
141
been accompanied by growing controversy about
surge in shale gas production occurring since
how potential land use and environmental
the mid-2000s (Ground Water Protection
impacts of fracking operations are regulated.
Council 2009) as well as the enactment of new
The rapid developments in this area of
state policies designed to deal with industry
energy production has inspired academic scho-
changes and impacts linked to fracking opera-
larship on the implementation of fracking pol-
tions (Rabe 2014).
icy as well as the consequences of these
Research suggests efforts to retain state-
policies. Specifically, three key issues have
level autonomy have largely succeeded, thanks
been addressed by the public policy and politi-
to defensive political actions taken by the
cal science literature. These issues include jur-
IOGCC, trade groups such as the American
isdictional control over regulation and control
Petroleum Institute (API) and the American
of fracking (Davis 2014; Fisk 2016; Weber,
Gas Association, state-elected officials, Repub-
Bernell, and Boudet 2016), substantive policy
lican members of Congress, and state regulators
concerns about how environmental quality is
(Davis and Hoffer 2012). In 2005, Bush admin-
balanced with fracking operations (Adgate,
istration officials and their Congressional allies
Goldstein, and McKenzie 2014; Ellsworth
sought to prevent U.S. Environmental Protec-
2013; Gullion 2015; Moore, Zielinska, and Pet-
tion Agency (EPA) regulations of oil and gas
ron 2014; Vengosh et al. 2014), and factors that
fracking operations under the Safe Drinking
shape the adoption and implementation of
Water Act, a provision of the Energy Policy
fracking policy at the state level (Heikkila
Act often referred to as the “Halliburton Loop-
et al. 2014; Richardson et al. 2013; Rinfret,
hole.” Since then, Congressional Democrats
Cook, and Pautz 2014). The goal of this essay
have unsuccessfully tried to enact the “Frac
is to succinctly summarize the literature on
Act” that seeks to reinstate EPA’s regulatory
these key issues to highlight what we know
authority (Warner and Shapiro 2013).
about fracking policy.
This places most fracking regulatory deci-
sions squarely within the context of state and
Jurisdictional Control over
local governments. Research demonstrates that
substate federalism involves competing efforts
Fracking Policies
by state and local officials to regulate oil and
Who shapes regulatory decisions affecting oil
gas drilling activities. As Warner and Shapiro
and gas drilling activities in the intergovern-
(2013) indicate, state energy and environmental
mental system? Producer states pursued a
regulators have historically been sensitive to
state-centric approach early on through the
the economic importance of industry jobs. Both
enactment of the Interstate Oil Compact (later
industry and most state officials have sought to
renamed the Interstate Oil and Gas Compact)
develop uniform statewide regulatory require-
in 1935, which created a commission (Inter-
ments to ensure predictability and a level play-
state Oil and Gas Compact Commission
ing field, which allows companies to develop
[IOGCC]) to coordinate oil and gas production
energy resources without running headlong into
and conservation programs and to recommend
a patchwork of differing policies, rules, and
a set of guidelines for the development of state
procedures from cities and counties (Goho
regulatory programs (Zimmerman 1995). State
2012).
policy makers saw the IOGCC as a beneficial
Not surprisingly, city and county officials
means of avoiding federal agency regulation
prefer more autonomy. Research indicates that
while creating some semblance of market stabi-
a key concern is that efforts undertaken by state
lity for member state firms. Since then, the reg-
energy regulators to maximize the economic-
ulation of U.S. oil and gas drilling operations
and energy-related benefits have been pursued
has been carried out at the state level with occa-
without adequate consideration of residents’
sional guidance from IOGCC. This includes
concerns about human health and environmen-
regulatory decisions made before and after the
tal protection (Sovacool 2014). A common

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142
State and Local Government Review 49(2)
argument supporting more local regulatory
Local bans or moratoria that passed in Color-
autonomy here is based on the notion that “one
ado and Ohio were eventually overturned in the
size does not fit all” (Richardson et al. 2013). In
respective state supreme courts (Proctor 2016;
addition, fracking operations have been devel-
Gilmer 2015) or through the enactment of leg-
oped in municipalities with little prior experi-
islation (as in Texas) that eliminated the prac-
ence with industrial activities thus stoking
tice of local bans (Lee 2015). Exceptions may
public fears (Jacquet 2014). Finally, local offi-
occur in states like New York and Pennsylvania
cials worry that state officials have adopted a
where court rulings upheld local government
lukewarm or even indifferent approach to com-
fracking regulations because of state constitu-
pany violations of oil and gas environmental
tional provisions giving greater weight to envi-
and safety regulations (Wiseman 2014).
ronmental policy concerns (Rabe 2014).
This has occasionally led to increasing polit-
ical conflict between state and local officials.
Policy Impacts Associated with
State-level policy makers are typically in the
Fracking
driver’s seat when considering most key poli-
cies that regulate the development of natural
Concerns about fracking operations inevitably
gas resources and can largely shape or restrict
become intertwined with discussions about
the contours of local government decisions
environmental, aesthetic, economic, health, and
(Fisk 2016). State influence over local policy
safety impacts. A particularly salient policy
decisions starts with the establishment of legal
issue for state and local regulators centers upon
authority that is granted to municipalities and
the adoption of setback requirements, that is,
counties by the state constitution and is
ensuring a minimum distance between oil and
extended through subsequent legislation. Most
gas drilling operations and residential areas,
oil and gas policies predate the shale gas revo-
structures, and waterways. According to Haley
lution and typically begin by placing emphasis
et al. (2016), shorter setbacks may prove risky
on a strong state role in fostering “the orderly
since residents may be more vulnerable to toxic
development of energy resources” that takes
air pollution from fracking activities. Meng and
precedence over competing local regulation
Ashby (2014) agree, contending that “the closer
efforts to regulate drilling activities (Warner
a site is to a...