Fracking, Federalism, and Private Governance

By Amanda C. Leiter

The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks and propose regulations for drilling on federal land. States have moved faster to address natural gas risks, but with little consistency or transparency.

Numerous private organizations are stepping into the resulting governance gaps with information-gathering and standards-setting efforts. As this Article documents, these private organizations are performing the functions once assigned to states in so-called “laboratory federalism”: developing innovative governance approaches and— perhaps more importantly—catalyzing the horizontal and vertical diffusion of successful governance strategies. In some cases, the likely outcome is a public governance regime with private origins; in others, private entities are likely to continue to play a role even as public entities enter the frame, creating a hybrid regime. Both outcomes highlight the need for process reforms to increase private entities’ openness, balance, and accountability. Familiar administrative procedures followed by public agencies offer one model for such reforms, but at least in the natural gas context, those procedures may be less effective for private entities than for the public agencies for which they were designed.

Cite as: Amanda C. Leiter, Fracking, Federalism, and Private Governance, 39 Harv. Envtl. L. Rev. 107 (2015).

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