Mapping Shale Gas Regulation
The big decisions about how to regulate explosive growth in shale gas development (fracking) aren’t being made in Washington, but in state capitals. As has long been true for most onshore oil, gas, and mineral development, states run the regulatory show. There are likely advantages and disadvantages of this. But to try to answer that question, or even just to compare states’ policies, requires understanding more than 30 sets of complex regulations. At RFF, we’re trying to do that, as part of our ongoing shale gas research. There’s still a lot to do, but this week we’ve released a preview – a set of maps showing how states differ in 27 areas of shale-gas regulation. The maps show regulation in 31 states, plus the American Petroleum Institute’s best practices recommendations for comparison.
We’re still trying to understand the patterns in the maps. But what’s immediately clear is the huge heterogeneity among states. We didn’t expect regulations to be uniform, but the degree of disagreement among states was a surprise. And this heterogeneity can’t be broken down simplistically – states that regulate stringently in some areas may be relatively lax or have no regulation on other parts of the development process. We hope in the future to be able to offer good hypotheses as to why (ideas welcome).
We do expect that local conditions matter – a regulation that is stringent relative to risk in one place might be lax in another, higher-risk area. Regulations to protect surface water are probably a lot more important in the Susquehanna basin in Pennsylvania than in the high deserts of the West. These differences and the rationales behind them will take time to puzzle out. But for now the heterogeneity itself is a story worth telling.
There are some important caveats, though. We built the maps by analyzing statutes and published regulations. But this isn’t the whole picture. First, enforcement matters. Two states with similar laws or regulations on the books may regulate very differently in practice. This is very hard to observe. We have made some stabs in this direction by looking at the number of regulating agencies and their inspectors in each state, but this is only a rough proxy.
A bigger limitation is permitting. Drillers have to get a permit before siting, drilling, fracking, and operating a well. Those permits are granted on a case by case basis, and may impose conditions that are tighter than any regulation. But it can be hard to find out what these conditions are and whether they’re uniformly applied. In theory, legislatures or regulators should clearly state the criteria for permits. But they don’t always do this, and even when they do, permit reviewers may have so much discretion that it’s impossible to know from a distance what is allowed. In some cases that can make it impossible to differentiate between a state that regulates something through the permit process (perhaps quite stringently), and a state that doesn’t regulate it at all.
Finally, the maps themselves require some compromises. Regulations are often laced with exceptions, exclusions, and idiosyncratic details that can’t be shown. Because of this, categorizing states often requires judgment calls. The text that accompanies each map explains some of this detail, but it’s impossible to be comprehensive (at least until our full report is released).
These limitations are worth keeping in mind as you look at the maps. Despite them, we hope the maps will be a useful resource. They give a snapshot of the leading edge of American environmental regulation – which, ironically, is often based on decades-old laws that never envisioned shale gas, horizontal drilling, or fracking.