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Home > Journals > Michigan Law Review > MLR FI > Vol. 112

 

Abstract

The practice of hydraulic fracturing-or fracking-has become a major focus of policymakers in recent years. Federal, state, and local regulations on fracking create a confusing web for industry to navigate, and governmental entities often battle with each other for authority to regulate the practice. The fast and widespread growth of fracking in the United States has therefore exacerbated confusion over who will regulate this booming industry, and courts have so far failed to use sensible principles to resolve inconsistencies among federal, state, and local regulations. When fracking laws conflict, courts traditionally use preemption doctrine-general rules that help judges choose whether state or local laws (or both) should apply in particular situations-to resolve these conflicts. Yet this doctrine has produced confusion and regulatory uncertainty. This Essay advocates a different approach. Because regulators and industry need both legal clarity and the ability to react to new information, courts should apply principles of administrative deference to resolve conflicts between state and local fracking regulations. Administrative deference refers to a set of principles that privileges administrative decision making over judicial discretion in areas of statutory ambiguity. Under these principles, courts weigh expert agency decision making more heavily when the agency has acted reasonably. When faced with a conflict between state and local fracking laws, courts should adopt administrative principles and privilege expert agency regulations rather than engage in an independent judicial inquiry. Part I provides background on fracking and argues that states are in the best position to regulate the practice. Part II then explores the difference between preemption doctrine and administrative deference, ultimately concluding that state courts should defer to state agency decisions on fracking regulation.

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