The Marcellus Shale region is experiencing a boom in natural gas drilling due to high-volume horizontal hydraulic fracturing, more commonly known as hydrofracking. This process has recently become controversial due to alleged drinking water contamination in Pennsylvania.

The Obama EPA has put forth several actions to regulate the emissions of greenhouse gases from stationary sources. These regulatory developments take place in the context of failed efforts to pass comprehensive federal legislation and the Supreme Court’s death blow to federal common-law remedies. Two of the Administration’s regulatory initiatives—the Endangerment Finding and the embrace of greenouse gases in the prevention of significant deterioration program—are embroiled in litigation, the outcome of which may not be known for some time.

In an unnecessarily exaggerated response to U.S. Supreme Court decisions over the past decade, the agencies that implement the Clean Water Act have substantially reduced the scope of waters that are considered jurisdictional “waters of the United States” under the Act. The agencies are now working on new guidance and regulations that would be a step toward restoring the intended scope of “waters of the United States.” However, in an attempt to narrow interpretations of the Act, opponents of clean water regulation have sought to rewrite the history of the Act and its implementation.

PSD permits issued to major emitting facilities must include BACT standards for each pollutant subject to regulation under the CAA. These standards must be determined by permitting authorities on a case-bycase basis, subject to EPA review and approval. Step 1 of the EPA’s preferred “top-down” procedure for making these determinations presents difficult interpretive issues, particularly as the Agency struggles to clarify its policy against using BACT to redefine the applicant’s facility.

This Article demonstrates that it is possible for lawsuits to ignite a market for an innovative energy technology that otherwise would be too costly to implement. For example,