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Fracturing Moratoria Under the Dormant Commerce Clause: The Need to Shape Rather Than Resist the Shale Gale

January 2014

Citation: ELR 10035

Author: Alfred R. Light

Opponents of oil and gas exploration using hydraulic fracturing have been advocating bans or moratoria on use of the technology, beginning in Vermont and New York. In the summer of 2013, several state legislatures, e.g., California and Illinois, rejected bans. In November, however, local bans were passed in Colorado and Ohio. This Article explores the breakthroughs that account for the rapid expansion of increased oil and gas production in the United States, returning North America to the energy powerhouse it had been in the 20th century. It briefly surveys various anti-fracker explanations for the phenomena, “big oil” advertising, lack of regulation, the Halliburton exemption from SDWA regulation, and model legislation developed by the American Legal Exchange Council. It then explains why “all-or-nothing” approaches to fracturing
such as bans or moratoria may present constitutional difficulties under the Dormant Commerce Clause.

Alfred R. Light is Professor of Law at St. Thomas University School of Law.

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