Eisenberg on Environmental Justice Concerns Surrounding Marcellus Shale

Ann Eisenberg (West Virginia) has posted Beyond Science and Hysteria: Reality and Perceptions of Environmental Justice Concerns Surrounding Marcellus and Utica Shale Gas Development (Pittsburgh Law Review) on SSRN.  Here's the abstract:

The debate surrounding the use of hydraulic fracturing (also known as “fracking” or “HF”) to extract natural gas from the Marcellus and Utica shale deposits is often characterized as a tension between economic development and environmental risks. But frequently missing from this dichotomy is the fact that the concerns of many who oppose HF use extend beyond the purely “environmental,” and also include concerns about issues such as “the natural resource curse” and losing autonomy. These concerns ring of “environmental justice” rather than “environmentalism.” Environmental justice espouses the belief that no group should bear disproportionate environmental consequences resulting from industrial activity, and that people affected by industrial activity should be meaningfully involved in implementation. Although the environmental justice movement has existed for decades and some federal and state policies acknowledge its principles, environmental justice has yet to be meaningfully incorporated into any legal framework in the United States.

This Article argues that a nuanced characterization of the HF controversy should include a more robust discussion of both environmental justice and discourse. Part I examines relevant regional economic and social dynamics, including the natural resource curse, Appalachia’s unique vulnerabilities, efforts to portray opponents of shale gas development as “anti-science,” and the environmental justice movement’s relationship to extractive industries. Part II reviews the use of modern HF technology and applicable legal frameworks in West Virginia, Pennsylvania, Ohio, and New York. Part III argues that across Ohio, Pennsylvania, and West Virginia, environmental justice issues have arisen from shale gas development, including problems stemming from information asymmetries, power asymmetries, and limited access to justice. In Part IV, the Article argues that the “anti-science” portrayal of shale gas opponents is unjustified, and that such “discourse-framing” obfuscates the actual costs and limitations on benefits of HF use, and thus, becomes an environmental justice issue itself. Part IV also argues that environmental justice concerns, including the lack of legal remedies for environmental injustice, shaped public sentiment in New York, and that the resulting “moral outrage” added to New York’s policy decision to ban HF altogether. Finally, in Part V, the Article suggests that ideas which transcend the study of “moral outrage”/risk assessment and environmental justice advocacy may offer a way forward.