Cooperative Federalism and Hydraulic Fracturing: A Human Right to a Clean Environment

This Article argues that filling the energy governance gaps regarding unconventional natural gas can best be accomplished through collaborative governance that is genuinely adaptive and cooperative. Through cooperative federalism, combined with procedural rights for inclusive, innovative decision-making, state and non-state actors should design and implement the requisite safeguards before further natural gas development advances. Hydraulic fracturing provisions are strikingly fragmented and have sparked a fierce debate about chemical disclosure, radioactive wastewater disposal, and greenhouse gas emissions. United States natural gas production may stunt the direction and intensity of renewable energy by up to two decades and will not provide a bridge to a sound energy policy if it "erode[s] efforts to prepare a landing at the other end of the bridge." Unconventional natural gas extraction need not become a transition to a new addiction.

This Article analyzes how cooperative federalism and inclusive decision-making can provide legitimacy and transparency when balancing property rights against police powers to regulate natural gas production.