Volume 30

A Fracking Nuisance: How States Can Compel Their Neighbors to Regulate Hydraulic Fracturing with Judicial Equitable Relief

by Rebecca Faye Eschen

Removing natural gas from subsurface bedrock by the process of hydraulic fracturing, or “fracking,” can lead to several environmental harms that are dangerous to human health. Some of these harms have the potential to create externalities beyond the border of the state in which the fracking occurs. Because fracking is not yet federally regulated, regulation of these externalities is at the discretion of the individual states. Piecemeal state regulation often results in regulatory gaps and ignored interstate externalities, as there is no federal body to offer oversight and the states are mostly interested in what goes on within their own borders. The doctrine of common law public nuisance has been used throughout history to counteract regulatory gaps caused by fragmented state regulations. This Note argues that common law public nuisance can be similarly used by states in order to control interstate externalities arising from fracking. The remedies provided by courts in public nuisance suits are equitable, and sometimes compel the defendant state to impose some sort of regulatory control to address the externalities. By requesting these remedies in equity from the courts, states can compel their neighbors to more adequately regulate fracking.

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