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92 Tul. L. Rev. 587 (2017-2018)

handle is hein.journals/tulr92 and id is 627 raw text is: Contracted Fracking Kristen van de Biezenbos* The near-term future of environmental regulation, especially at the federal level, is in doubt. Protections that were already in place seem to be in danger of being rolled back or simply not enforced, and additional safeguards meant to protect local community quality of lfe as well as air water and soil quality, are unlikely to be forthcoming. At the same time, lawmakers in Congress have promised to facilitate the expansion of oil and gas development and remove existing restrictions where possible. A significant portion of this development will likely involve hydraulic fracturing, or 'fracking, a widely used technique to access previously unavailable hydrocarbons in shale and other formations. Current regulations do not necessarily curb fracking's negative impacts on quality of lfe, nor do they always offer adequate environmental protections. While state and local regulatory responses to many of those problems have ballooned, conflicts between states and local residents have also risen. Because the possibility of resolving those conflicts through federal regulation is remote, alternative solutions are critical. This Article suggests one such alternative: private contracting between communities and oil and gas companies. Drawing on existing literature on analogous contracts between industry and community groups, this Article suggests that it may be possible to include local input into the governance of fracking by encouraging communities to enter such contractual agreements. I. INTRODUCTION...............5...8...8...............588 II. THE CURRENT STATE OF FRACKING REGULATION..... .....594 A. The Fracking Process ......................597 B. State Preemption ofLocal Fracking Regulations........599 C. Private Environmental Governance: From Regulatory Solutions to Land Use Problems ...............602 D. The Relationship Between Oil and Gas Companies and Local Communities ........ ........605 III. LESSONS FROM EXISTING CONTRACTUAL ARRANGEMENTS BETWEEN COMMUNITIES AND INDUSTRY ......607 * 0 2018 Kristen van de Biezenbos. Assistant Professor, The University of Calgary Faculty of Law (2017-present); Associate Professor, The University of Oklahoma College of Law (2016-2017). Special thanks to the participants of the Sabin Colloquium at Columbia University School of Law where this Article was first presented. Additional thanks to the participants of the Oklahoma Junior Scholars Conference. Special thanks to Jacqueline Lang Weaver, Hannah Wiseman, Gregg Macey, Monika Ehrman, Melissa Mortazavi, Amy Stein, Joshua Fershee, James Coleman, and Noah Theriot, and the participants of the Shapiro Symposium on Private Environmental Governance at George Washington University Law School. 1. In this Article, fracking also refers to the development and production phases of shale oil and gas production (hydrocarbon production). These phases also include road construction, well pad and drilling rig assembly, drilling the well, fracking the well, casing the well, and extracting oil and gas from the well. Many fracking bans and regulations actually cover some or all of these processes as well. 587

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