Buffalo Environmental Law Journal


Jared B. Fish

First Page


Document Type



In Copyright


High volume "slickivater" horizontal hydraulic fracturing ("hydrofracking" or 'fracking") is an innovative technology nov widely used to extract natural gas from shale rock. Proponents hail fracking as a way to promote energy independence, bring jobs to economically distressed communities, and mitigate climate change by switching from oil and coal to natural gas. Yet the process has come under increased public scrutiny in recent years as thousands qf reports surfaced linking hydrofracking to groundwater contamination, air pollution, and various maladies. Despite an explosion qf media reports on the potential risks associated with fracking, landowners continue to lease their mineral rights to natural gas companies on a large scale. The number of iells in Pennsylvania alone - a state that sits atop the gas-rich Marcellus shale formation - is expected to rise from 3, 000 in 2010 to 60, 000 by 2030.

This paper analyzes landowner incentives that encourage leasing even in the face qfpotentially serious risks. I conduct the analysis through a behavioral lens, and posit that enthusiasm for leasing results from three factors: (1) a failure to perceive long-term risks due to asymmetrical information between landovners and industry (2) a prisoner & dilemma resulting largely from evolving nuisance and trespass jurisprudence that strengthens mineral extractors 'rights, and (3) an inadequate regulatory environment that leaves few places off-limits to fracking.

States, and perhaps the federal government, must strengthen laws and regulations governing fracking to bridge asymmetries in information and power Before government can promulgate appropriate regulations, howtever more research is needed to understand fracking full health and environmental risks. Until then, the precautionar} principle should govern the expansion of a potentially promising technology.