Holding fracking operations to account for environmental contamination in risk-based regulatory regimes: Insights from the United States
School of Business and Law
This article considers the limitations of risk-based regulatory regimes applied to hydraulic fracturing (fracking) activities in Australia, in particular the risk approaches taken by regulators in Western Australia and South Australia. It considers the application of the precautionary principle and means of imposing “precaution” into regulatory arrangements, to strengthen the protections afforded to those communities likely to be impacted by future commercial production of unconventional gas. Experiences of private litigants in the United States and their failure to establish causation in fracking cases are drawn on to illustrate the importance of putting in place precautionary measures prior to the commencement of large-scale fracking operations in Australia. The article recommends that regional management plans, which incorporate core elements of the precautionary principle and ecological sustainable development principles, are useful legal and management tools that lay the foundation for overcoming the problem of causation and lack of baseline studies. Thus regional management plans prepared for fracking operations provide the framework for establishing environmental harm such as the environmental contamination of water.