The Incomplete Ecology of Hydraulic Fracturing Governance

50 Ariz. St. L.J. 583 (2018). Gregg P. Macey.

Legal scholars respond to novel risks and technologies such as hydraulic fracturing with a wide range of governance claims. Normative claims are rendered as to whether central (federal), devolved (state and local), dual (distinct and separate approaches), cooperative (shared authority), or dynamic (overlapping and collaborative) federalism should prevail in addressing a policy problem. But the means by which scholars distinguish among governance options are often overconfident. Some accounts claim that regulators lack resources and expertise, or they enjoy economies of scale. Others argue that state or federal actors can tailor decisions and serve as testing grounds, or they are unable to get such experiments off the ground. What these claims lack is an account of how governance emerges in response to a new policy context.

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