Fractured, Fragmented Federalism: A Study in Fracking Regulatory Policy

Unlike the regulation of other heavy industries, frackingçin which companies create cracks in shale rock to extract gas, oil, or other substancesçhas been exempted from federal reach, leaving regulation to the states, which appear vulnerable to capture by energy interests. As fracking has expanded, become more complex, and generated considerable controversy, some states have sought to quash local government efforts to impose more stringent regulations. Citizens and activists have sought redress through the courts, and some states are fighting over the transport of waste disposal across state lines. The story is one of fractured, fragmented federalism that illustrates the key role played by regulated interests that prefer state to federal regulation, result-ing in a variable, often weak state regulatory regime. Much of regulatory policy scholarship has emphasized federal activity, with the federal government setting the broad parameters and state governments acting as the primary implementers. This is especially true in most social regulatory arenas, including environmental protection, where the federal government acts as overseer and gives states authority and discretion (Bowman and Kearney 1986; Crotty 1987; Lester and Bowman 1989; Welborn 1988). Given this, why did the federal government cut itself out of the regulatory picture in the area of fracking—ceding to states and industry primary authority over an issue that has many federal implications and precedents? Given the recent emergence of fracking, it is important to state that this article is an early attempt to describe what may be an idiosyncratic policy—or perhaps one that will become more common in future years. It is a story of dominant interests that have aligned themselves with federal and state governments to benefit the fracking industry and push back against their own local governments, citizens, and advocacy groups. This federalism regulatory scenario is unusual because, unlike a classic federalism problem in which states act in the absence of federal regulation, here the federal government has largely and deliberately cut itself out of the regulatory picture in ways that are seemingly more conducive to the big busines