THE INCOMPLETE ECOLOGY OF HYDRAULIC FRACTURING GOVERNANCE.

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. This Article develops such an account. It recasts unconventional oil and gas development, which inspired a vast literature focused on abiotic impacts such as chemical contamination, as a landscape conservation problem. As fracking sites proliferated in twenty states, they were met with similarly exponential growth in scientific research, most of which was carried out in the last five years, as well as state efforts to address their ecological impacts. The parallel development of peer-reviewed research and the design of restrictions and controls in states such as Wyoming and Colorado occurred as governance emerged among unique assemblages of scientists, department officials, operators, and other groups. Research imperatives of optimally organized landscape, management practices adapted to eco-regional effects, and oil and gas sites in the context of other forms of human disturbance can be removed from consideration, as institutions such as "best management practices," representations such as "wildlife area," and iterative permit approval and amendment formed what we now refer to as a regulatory response to an environmental impact. Before we consider normative governance claims such as state primacy in tailoring or testing knowledge, or the federal role in collecting or dispersing knowledge, we must first study these interactional responses that co-produce governance of a policy problem such as unconventional energy. This research will allow us to refine our claims and render more nuanced proposals that respond to risks posed by novel technologies. [ABSTRACT FROM AUTHOR]