David L. Callies is Benjamin A. Kudo professor of law at the University of Hawaii's William S. Richardson School of Law. He is a graduate of DePauw University, the University of Michigan Law School (J.D.) and the University of Nottingham (LL.M.), and a past foreign fellow and present life member of Clare Hall, Cambridge University. In 2006 he received a Lifetime Achievement Award of the American Bar Association Section of State and Local Government Law, in 2009 a University of Hawaii Board of Regents’ Excellence in Teaching Award and in 2015 the crystal eagle award of the Owners' Counsel of America for his contributions to the law of property rights. He is presently writing a book on the public trust doctrine.

He is past chair of the Real Property and Financial Services Section of the Hawaii State Bar Association, the American Bar Association Section of State and Local Government Law, and elected member of the American Law Institute, the College of Fellows of the American Institute of Certified Planners, the American College of Real Estate Lawyers; and co-editor of the annual Land Use and Environmental Law Review.

Among his twenty books are (with coauthors) The Role of Customary Law in Sustainable Development (CUP: 2006 and paperback 2010); Taking Land: Compulsory Purchase and Land Use Regulation in the Asia-Pacific (with Kotaka) (U.H. Press, 2002, republished in Japanese, 2007).

Description

This article examines the regulation of fracking which has transformed the United States’ energy outlook, from a comparative perspective.

In the U.S. there is a considerable amount of substantive activity over the regulation of fracking at the federal level. But since the hydraulic fracturing process itself is exempt from federal regulation, fracking continues to be primarily a matter of state and local law. There currently exists a patchwork of state regulations, with each state enacting various requirements for wastewater disposal, underground injection, storm water runoff, water supply acquisition, and the process for spacing, drilling, casing, and operating wells. But while most states in which fracking occurs have comprehensive oil and gas regulation statutes, few of these actually regulate fracking. Therefore, much of the effective regulation comes from local government through existing zoning and other land use ordinances. The European Union (EU) is expected to release a unified policy on fracking to manage a multiplicity of sometimes-conflicting laws and permitting requirements throughout EU countries. With the unified EU policy still in the early stages of development, several EU countries have adopted their own approaches in the interim.

The U.S. experience in regulating hydraulic fracturing represents a useful, if cautionary, paradigm for other countries also struggling with the issue of how to regulate the industry.