A law firm diplomatically, but insistently, tracks the regulatory path that the second Obama administration will use to confine hydraulic fracking as a means for American energy security. No new laws are necessary:
While there will be hydraulic fracturing legislation introduced in both chambers, the White House is not banking on a meaningful hydraulic fracturing bill reaching the president’s desk.Actual legislation is so yesterday. If the regulatory state's inventory of available authority is so vast that the executive branch can accomplish essentially any objective without consulting Congress, can we all agree that our government is fundamentally out of reach?
Absent new statutory authority, this administration is going to inventory the regulatory authority it has within existing environmental statutes and figure how to promulgate rules under those statutes. The Obama Environmental Protection Agency did the same thing with climate change in the first term. Once the administration satisfied itself that the divided legislature would not pass a climate change bill, it promulgated greenhouse gas, or GHG, regulations under the Clean Air Act. Even the administration acknowledged that the CAA was a poor tool to regulate GHGs and that the CAA would need to be modified administratively to accommodate these ubiquitous gases, but they shoehorned GHGs into the CAA anyhow and, so far, courts have allowed it. We suspect that experience is fresh in this administration’s mind and that the regulatory shoehorn is primed for action.