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A Market Approach to Regulating the Energy Revolution: Assurance Bonds, Insurance, and the Certain and Uncertain Risks of Hydraulic Fracturing

August 2015

Citation: 45 ELR 10746

Issue: 8

Author: David A. Dana and Hannah J. Wiseman

In the industrial revolution of the nineteenth century, the United States was transformed from a largely agrarian nation of farmers to a major center of manufacturing. With industrialization came new risks to public welfare and, ultimately, changes in law to address those. The United States is now undergoing another revolution, an energy revolution that has the potential to transform the United States from a net energy importer into the next Saudi Arabia. Like the industrial revolution, this energy revolution entails new risks and, by necessity, will produce new legal responses to those risks. It has fomented one of the greatest environmental regulatory challenges of our time, and calls for an effective solution that must be rapidly implemented. This Article addresses a set of important legal responses that so far have received scant attention from academic commentators and lawmakers—market-based requirements for enhanced bonding and, more importantly, environmental liability insurance for wells.

David A. Dana is the Kirkland & Ellis Professor of Law, Northwestern University Law School. Hannah J. Wiseman is the Attorneys’ Title Professor, Florida State University College of Law.

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