This Note examines the relationship between the rural poor and the negative externalities of hydraulic fracturing (“fracking”). It asserts that the rural poor are disproportionately burdened with fracking’s negative externalities and that comprehensive, national regulation is needed because current legal methods are insufficient to internalize these costs. The argument is made in four parts: describing fracking’s externalities; assessing their impact on the rural poor; analyzing current legal regimes; and proposing an equitable regulatory framework based on cooperative federalism.
Fracking produces three main categories of negative externalities: water, air, and land contamination. Water contamination can be caused by migration of fracking fluids, methane, or sediment into aquifers; air contamination may result from fugitive vapors and onsite combustion; and land contamination can occur from spills of fracking fluids and toxic runoff. Each devalues neighboring properties and has the potential to cause adverse health effects.
Fracking operations are predominantly performed in poor, rural areas, and these communities bear the brunt of fracking’s unsavory byproducts. This conclusion is reached by analyzing the poverty rates of counties with the most fracking activity in Kentucky, Virginia, Pennsylvania, North Dakota, Oklahoma, and Texas. Fracking operations are situated in rural communities because rural fracking provides more space, is cheaper, and is less burdensome than fracking in suburban or urban areas. Accordingly, residents in rural communities bear a disproportionate amount of fracking’s negative externalities.
Neither the common law nor federal statutes provide affected landowners with sufficient access to remedies for harms caused by fracking. The doctrines of trespass, nuisance, negligence, and strict liability have largely failed in the state courts. Federal laws—including the Clean Water Act; Clean Air Act; Resource Conservation and Recovery Act; and Comprehensive Environmental Response, Compensation, and Liability Act—contain significant exceptions and only apply to narrow parts of the fracking process. These laws do not adequately internalize the costs imposed on neighboring landowners by fracking operations.
National legislation is needed to internalize the negative externalities from fracking. Ex ante regulation will internalize more than ex post liability alone, and federal regulation will avoid problems that are common in state-by-state regulation, such as the regulation of trans-boundary pollution. Moreover, new federal regulation can incorporate techniques from similar fields that potentiate the internalization of social and environmental costs. These regulatory techniques include cooperative federalism, monitoring provisions, whistleblower protections, criminal liability, and standing for environmental groups. Federal legislation of fracking has the potential both to provide uniform, equitable regulations to this multi-state industry and to help affected landowners seek redress when accidents occur.
"Fracking and the Rural Poor: Negative Externalities, Failing Remedies, and Federal Legislation,"
Indiana Journal of Law and Social Equality:
2, Article 6.
Available at: http://www.repository.law.indiana.edu/ijlse/vol3/iss2/6