As a practitioner who has represented low-income individuals and community groups pro bono on environmental and energy development issues for over three decades, I appreciate the contribution of Professors Dana and Wiseman to the literature concerning the regulation of those particular risks and effects of the use of hydraulic fracturing and horizontal drilling to develop shale gas and oil from formations once considered inaccessible.

It is a privilege to comment on the extensive and thoughtprovoking work of Professors Dana and Wiseman. I approach this from the perspective of my practice in the environmental regulation of natural resources industries, including coal and hard rock mining and oil and gas extraction, and the role that surety bonds and other forms of financial assurance play in those industries. Professors Dana and Wiseman describe categories of relatively certain risks in the short or medium term versus those risks that are uncertain and have a long tail.

The ELI-Vanderbilt Law School Environmental Law and Policy Annual Review identifies outstanding academic work in the field of environmental law. The reviewers selected two excellent articles on the challenges of hydraulic fracturing (fracking for short) to the regulatory system for presentation and discussion at the 2015 program on Capitol Hill: David A. Dana and Hannah J. Wiseman, A Market Approach to Regulating the Energy Revolution: Assurance Bonds, Insurance, and the Certain and Uncertain Risks of Hydraulic Fracturing, and Thomas W. Merrill and David M.

In the industrial revolution of the nineteenth century, the United States was transformed from a largely agrarian nation of farmers to a major center of manufacturing. With industrialization came new risks to public welfare and, ultimately, changes in law to address those. The United States is now undergoing another revolution, an energy revolution that has the potential to transform the United States from a net energy importer into the next Saudi Arabia.

In their article The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination, Professor Merrill and Dean Schizer have made a very thoughtful proposal that has genuine merit and deserves equally thoughtful consideration by states across the country. I have a series of what are essentially random reactions, thoughts, and suggestions, but they all flow from a fundamental position that their suggestions are an excellent model for states to consider as they adopt new or update old regulatory and liability regimes.

The shifting economic, regulatory, political, and operational landscape of shale gas development requires regulatory approaches that are timely, flexible, and adaptive. Voluntary standards, particularly those that incorporate diverse perspectives, are a path toward responsible and constructive leadership that can inform and support development of a reasoned regulatory and legal structure.

This Article considers how to regulate the risk of water contamination from fracturing. The task entails a careful balance of competing considerations. The shale boom offers enormous benefits and should be encouraged. At the same time, we need regulation to ensure that it is safe, since water is a vitally important resource. In addition, the public must believe that shale drilling is safe.

In this Comment, we draw on the results of the ELPAR article selection process to report on trends in environmental legal scholarship for academic years 2008-2014. We find that although the precise totals varied from year to year, more than 400 environmental law articles were published each year during this period. Additionally, this Comment provides data on the topics covered in the environmental law articles reviewed by the ELPAR staff. The goal is to provide an empirical snapshot of the environmental legal literature and to track trends over time.

The pending Trans-Pacific Partnership (TPP) trade agreement has raised controversy, fueled by leaks of the draft text and congressional debate over fast-track negotiation authority. Like similar agreements, the TPP creates the risk of government liability for enacting regulations, especially new or comprehensive measures to address climate change. This Article analyzes how the TPP’s investor protection provisions and dispute settlement mechanism might be invoked to challenge climate change policy.

Courts have grappled with the scope of CERCLA arranger liability ever since the U.S. Supreme Court’s 2009 decision in Burlington Northern & Santa Fe Railway Co. v. United States. Two opposite decisions on nearly identical facts illustrate the variety of approaches. In the first, a manufacturer’s actions related to the sale of PCB-laden scrap paper did not show the requisite intent to dispose; in the second, evidence gleaned from documents and expert testimony was the primary basis for holding the same manufacturer liable as an arranger.