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Report: Fracking Oversight to Grow in States, Lessen for Feds

State oversight of hydraulic fracturing (fracking) will become more robust while federal oversight diminishes, according to a report released Thursday by a Houston-based law firm examining the legal and regulatory ramifications for fracking nationally.

Several "basic patterns" in state regulation are emerging and during the next five years there will be a "gradual settlement" of what fracking regulation aspects should be delegated by states to local jurisdictions, according to Haynes and Boone LLP's examination of 18 states now regulating fracking.

"States are moving toward expressly including fracking under general statutes and regulations that cover all oil and natural gas exploration and development activities," said the four authors of "American Law and Jurisprudence on Fracing -- 2012." The authors are a lawyer with a doctorate degree in geophysics and three Haynes and Boone attorneys

They cite four other developments that all states active in the area are taking regarding hydraulic fracturing, which they said dates back to the middle of the 20th century in a number of states. The four are:

The latter "is already coming in Pennsylvania and will probably spread to other states," said the Haynes/Boone report.

The 187-page fracking white paper, which was originally published by the Rocky Mountain Mineral Law Foundation for an annual mineral law institute in that region, is an update of a 2010 report by authors Christopher Kulander, Thomas Kurth, Michael Mazzone and Mary Simmons Mendoza.

Constructed as a state-level analysis, the report includes recent examples of state-level legislation and associated regulations, along with citing state bills under consideration and opinions of states courts related to fracking oversight.

While the economic benefits of fracking likely will see the practice continue to spread, nevertheless in some cities and counties, and perhaps even some states, fracking will be prohibited under pressure from local citizen and environmental groups, the report said. However, "too many parties stand to gain too much from this technology for fracking to be entirely stopped.

"A centerpiece in the debate over hydraulic fracturing is the deliberation over whether the regulation of the process is rightfully the province of the federal Environmental Protection Agency (EPA) or of the individual states."

The white paper said "a flurry of state and local activity may attenuate the interest of EPA in federal oversight of fracking.

"The authors believe that, in general, the chances of federal oversight of fracking will be diminished if, by the time of the release of the second EPA report, most of the states with shale gas and oil development will have passed or will then be formulating robust regulatory schemes governing the use of fracking."

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