A Critical Assessment of the U.S. Environmental Regulation of Shale Gas Development. What Can Be Learned from the U.S. Experience?

In light of an increasing intent by the UK Government to authorise hydraulic fracturing (also commonly known as ‘fracking’), this paper examines the experience of the U.S. in regulating a practice which presents considerable risk to the environment. The impact of shale gas development on water resources in particular has shaped the greatest regulatory response in U.S. states and is therefore the focus of this contribution. With the development cycle posing impacts on water use, groundwater and surface water contamination, this paper aims to assess how effectively the law in the U.S. is mitigating these risks both at federal and state level. From an assessment of U.S. regulation, the paper attempts to highlight areas from which the UK could learn and adjust its own existing legal framework in order to better protect against the presented water risks posed by a UK shale gas industry. Whilst the UK has existing general legislation in place, it has yet to reach production levels as experienced in the U.S. and this paper examines how the U.S. has been forced to adapt water law and policy during active shale gas development. The paper first explains and questions the U.S. decision to exempt fracking from the Safe Drinking Water Act, a uniform federal regulation. It argues that the rationale for the exemption is unsatisfactory and submits that a similar reactive policy towards water law must be avoided by UK Governments. As a result of the exemption, this paper then assesses the efforts made by regulators of the two leading shale gas producing states; namely Pennsylvania and Texas, to protect water resources. It first highlights how both states have controlled the use of water before fracking takes place by comparing common law doctrines and public body governance. Second, it assesses how both states have been forced to adapt existing well construction requirements to protect groundwater during fracking. The analysis of state regulation concludes by highlighting the problems of current federal regulation over the treatment of untreated wastewaters, and how Pennsylvania has been forced to amend its law in response to water contamination. The final section offers a preliminary overview of the current UK legal framework applying to shale gas and the risks to water resources. It offers an initial assessment as to whether the UK should consider adapting its water law in light of the U.S. experience. This assessment concludes that whilst the existing UK legislation is to some extent more advanced than its American counterpart, its effectiveness ultimately remains untested and a revisit of the existing regulation is recommended.