New battlefields are constantly emerging in our legal system. Most of them feature nothing more than small skirmishes in discrete areas of the law. But, every so often, we witness the birth of a new genre, one that has the potential to shape or even transform an entire industry. That is exactly where we are with shale gas and oil development in the United States.

Shale, which underlies vast areas of the United States, may contain enough gas and oil to meaningfully assist in decreasing the United States’ dependence on foreign oil and domestic coal. But this natural gas and oil can only be unlocked through a process called hydraulic fracturing, or fracking, a procedure designed to increase the flow of gas by pumping liquids into subsurface rock units under pressures that are high enough to fracture the rock. Hydraulic fracturing has been in use for more than six decades, but significant opposition has arisen to this practice, threatening to block the energy industry’s access to this resource.

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