Tuesday, February 19, 2013

Hydraulic fracturing and the emergent dormant Commerce Clause

I was recently invited to write a short essay on hydraulic fracturing and the dormant Commerce Clause based upon a post on this blog in January, 2012.  The essay just came out and, since this blog was the source of the essay's origin, I thought it was only fitting to post it here, too.  Here is the abstract:

This essay reviews the increasing prominence of the dormant Commerce Clause in debates over hydraulic fracturing. In particular, the essay is framed around New Jersey Governor Chris Christie’s citing of the dormant Commerce Clause as a reason for vetoing a ban on hydraulic fracturing wastewater disposal passed by the New Jersey Legislature. The Governor’s reasoning is compared to analysis in a New Jersey Office of Legislative Services' memorandum indicating the dormant Commerce Clause would not be implicated by the proposed ban. The legal reasoning of the New Jersey dispute regarding the applicability of the dormant Commerce Clause to hydraulic fracturing is then considered in light of other scenarios around the country.

Get a free copy here!  I welcome comments.  And thanks to Jim Wedeking (Sidley Austin, ABA SEER Constitutional Law Committee) for the invitation to write the essay.

Stephen R. Miller


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