The theme of this year's Federalist Society Lawyers' Division convention is "The Role of Congress." That theme makes a lot of sense in the seventh year of Barack Obama's presidency. President Obama has taken the model of 'the administrative presidency' to a new level. In 2014, he announced, "I've got a pen and I've got a phone." And over the second term of his presidency, Obama's Environmental Protection Agency has been unusually active. This year, the EPA had mercury emissions called into question at the Supreme Court, it promulgated far-reaching rules expanding federal jurisdiction over clean waters, and it has lots of regulatory proposals in the works relating to air quality, fuel efficiency, and global climate change.
At the convention, the Environmental Law and Property Rights practice group will host a panel on the role of Congress in relation to contemporary environmental policy and administration. Given where things are, onlookers might be inclined to think that Congress's role must necessarily be opposed to the President's. But not necessarily, and not on every topic.
In my remarks, I'll focus on federal law and policy toward hydraulic fracturing and shale gas production. Shale gas production is one of the biggest success stories in the United States in the last decade. This success has continued, at least in part, because Congress has given clear guidance to the EPA, and the EPA has taken a fairly hands-off approach. In my remarks, I'll focus on two illustrations. In the 2005 Environmental Policy Act, Congress enacted amendments to the Clean Water Act to make clear that the Act wasn't intended to cover deep hydraulic fracturing. This year, the EPA released a survey of studies and reports about the link between fracturing and fresh-water contamination, and the survey wasn't nearly as critical as many onlookers suspected it might be. Why is federal policy toward fracturing less contentious than other fields of federal environmental policy, and can the features that make fracturing policy relatively harmonious be applied elsewhere?