Regulatory islands

New York University Law Review

Volumn 89, Issue 5, 2014, Pages 1661-1742

  Wiseman, Hannah J ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 84905657857     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (384)

1. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
2. Akhil Reed Amar, Five Views of Federalism: "Converse-1983" in Context, 47 Vand. L. Rev. 1229, 1233-36 (1994) (summarizing justices' praise of state experimentation).
3. Heather K. Gerken, Foreword: Federalism All the Way Down, The Supreme Court 2009 Term, 124 Harv. L. Rev. 4, 47-48 (2010) (explaining that under traditional accounts, federalism "promotes choice, competition, participation, experimentation, and the diffusion of power" and that in Gerken's alternative account, outsiders participate in the federalist system and positively "feed back into national debates").
4. Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485, 1499 (1994) (arguing that most claims about the benefits of federalism, including the argument that it allows for innovation, "remain valid today").
5. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484, 1493, 1498 (1987) (book review) (concluding that "decentralization allows for innovation and competition in government" and gives subfederal entities "greater opportunity and incentive to pioneer useful changes" as compared to a "consolidated national government," which is like a monopoly).
6. See, e.g., Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 906 (1994).
7. Younger v. Harris, 401 U.S. 37, 44 (1971)
8. M. Elizabeth Magill, The Revolution That Wasn't, 99 Nw. U. L. Rev. 47, 48 (2004).
9. Nicole Huberfeld, Federalizing Medicaid, 14 U. Pa. J. Const. L. 431, 462 (2011) (concluding that "the Rehnquist Court began a federalism revolution that now has been at least partially adopted by the Roberts Court").
10. Ernest A. Young, "The Ordinary Diet of the Law": The Presumption Against Preemption in the Roberts Court, 2011 Sup. Ct. Rev. 253, 254-56, (2011).
11. For a discussion of the growth of the number of wells, see David A. Dana & Hannah J. Wiseman, A Market Approach to Regulating the Energy Revolution: Assurance Bonds, Insurance, and the Certain and Uncertain Risks of Hydraulic Fracturing, 99 Iowa L. Rev. 1523, 1541-42 (2014).
12. See, e.g., David B. Spence, Federalism, Regulatory Lags, and the Political Economy of Energy Production, 161 U. Pa. L. Rev. 431, 447 (2013) ("[T]he regulation of oil and natural gas exploration and production in the United States has always been primarily a state matter.").
13. See, e.g., Hari M. Osofsky, Suburban Climate Change Efforts: Possibilities for Small and Nimble Cities Participating in State, Regional, National, and International Networks, 22 Cornell J.L. & Pub. Pol'y 395 (2012) (analyzing the role of suburban governments in addressing climate change).
14. State and Local Adaptation Plans, Georgetown Climate Center, http://www.georgetownclimate.org/node/3325 (last visited July 4, 2014) (listing local plans to adapt to climate change).
15. But see Exec. Order No. 13,653, 78 Fed. Reg. 66,819 (Nov. 1, 2013) (ordering federal action to prepare for the impacts of climate change).
16. Interagency Climate Change Adaptation Task Force, Federal Actions for a Climate Resilient Nation: Progress Report of the Interagency Climate Change Adaptation Task Force (2011), available at http://www.whitehouse.gov/sites/ default/files/microsites/ceq/2011_adaptation_progress_report.pdf (showing federal efforts).
17. See, e.g., Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534, 539-40 (2011) ("Some parts of the [Patient Protection and Affordable Care Act] are unequivocally designed around a presumption favoring state implementation … . The statute … posits concurrent regulation by the states and the lead federal administrative agency … .").
18. Heather K. Gerken, Foreword: Federalism All the Way Down, The Supreme Court 2009 Term, 124 Harv. L. Rev. 4, 47-48 (2010) (explaining that under traditional accounts, federalism "promotes choice, competition, participation, experimentation, and the diffusion of power" and that in Gerken's alternative account, outsiders participate in the federalist system and positively "feed back into national debates").
19. Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 79 (2011) (arguing that effective administrative experimentalism can involve a "'center' and a set of 'local units,'" and that "the center could be a government agency, and the local units the private actors it regulates or the public or private service providers with which it contracts").
20. See, e.g., Richard Briffault, "What About the 'Ism'?" Normative and Formal Concerns in Contemporary Federalism, 47 Vand. L. Rev. 1303, 1315 (1994) (recognizing the virtues of federalism in local governments).
21. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484, 1493, 1498 (1987) (book review) (concluding that "decentralization allows for innovation and competition in government" and gives subfederal entities "greater opportunity and incentive to pioneer useful changes" as compared to a "consolidated national government," which is like a monopoly).
22. In her pathbreaking piece on laboratories of government, Susan Rose-Ackerman assumed that little subfederal innovation occurs because subfederal governments can merely free ride by copying first movers' policies-thus assuming some degree of free information flow, although not benchmarking of any sort. She argued that there will be few first movers in policy innovation because states typically cannot patent their risky policy experiments and thus, in a world of "low cost diffusion," will be quickly copied. Susan Rose-Ackerman, Risk Taking and Reelection: Does Federalism Promote Innovation?, 9 J. Legal Stud. 593, 610-11 (1980).
23. See, e.g., David A. Dana, State Brownfields Programs as Laboratories of Democracy?, 14 N.Y.U. Envtl. L.J. 86, 97 (2005) (arguing that a true laboratory of the states requires "measurement of experimental outcomes for each test group").
24. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
25. Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 79 (2011) (arguing that effective administrative experimentalism can involve a "'center' and a set of 'local units,'" and that "the center could be a government agency, and the local units the private actors it regulates or the public or private service providers with which it contracts").
26. Charles R. Shipan & Craig Volden, The Mechanisms of Policy Diffusion, 52 Am. J. Pol. Sci. 840, 841-42 (2008) (noting that learning-one mechanism that supports diffusion of policy-involves "observing the politics of policy adoption and the impact of those policies," but that success can be "difficult to measure," although "shortcuts" or proxies are available).
27. Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 Harv. L. Rev. 1422, 1423 (2011) (noting that government actors need but often lack optimal information about the "likely consequences of different courses of action").
28. See Wendy E. Wagner, Commons Ignorance: The Failure of Environmental Law to Produce Needed Information on Health and the Environment, 53 Duke L.J. 1619 (2004) (detailing the dearth of scientific information in the context of environmental law).
29. Or if the federal government is borrowing approaches from states to create better law, it, too, must know what worked. See David L. Markell, States as Innovators: It's Time for a New Look to Our "Laboratories of Democracy" in the Effort to Improve Our Approach to Environmental Regulation, 58 Alb. L. Rev. 347, 358 (1994) ("[T]he federal government should pay special attention to state and local governments' efforts in determining how best to 'reinvent' itself in terms of environmental regulation."). This Article focuses on the lack of comprehensive and useful information about policy approaches rather than the results of policy experiments.
30. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
31. See, e.g., Andrew Karch, Democratic Laboratories: Policy Diffusion Among the American States 107 (2007) ("The emergence of new information technologies, such as the Internet, increased the ease and speed with which many organizations can provide policy-relevant information.").
32. Daniel C. Esty, Environmental Protection in the Information Age, 79 N.Y.U. L. Rev. 115 (2004) (expressing optimism about the power of monitoring technologies and the Internet in producing more information about policy results and compliance).
33. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
34. Akhil Reed Amar, Five Views of Federalism: "Converse-1983" in Context, 47 Vand. L. Rev. 1229, 1233-36 (1994) (summarizing justices' praise of state experimentation).
35. Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1211-12 (1992) (arguing that competition among states in regulation can produce efficient levels of activity).
36. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (concluding that federalism "assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society").
37. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484, 1493, 1498 (1987) (book review) (concluding that "decentralization allows for innovation and competition in government" and gives subfederal entities "greater opportunity and incentive to pioneer useful changes" as compared to a "consolidated national government," which is like a monopoly).
38. In her pathbreaking piece on laboratories of government, Susan Rose-Ackerman assumed that little subfederal innovation occurs because subfederal governments can merely free ride by copying first movers' policies-thus assuming some degree of free information flow, although not benchmarking of any sort. She argued that there will be few first movers in policy innovation because states typically cannot patent their risky policy experiments and thus, in a world of "low cost diffusion," will be quickly copied. Susan Rose-Ackerman, Risk Taking and Reelection: Does Federalism Promote Innovation?, 9 J. Legal Stud. 593, 610-11 (1980).
39. See Everett M. Rogers, Diffusion of Innovations 276-77 (5th ed. 2003) (describing proximity as one causal factor for the diffusion of innovation).
40. Frances Stokes Berry & William D. Berry, Innovation and Diffusion Models in Policy Research, in Theories of the Policy Process 223, 228-29 (Paul A. Sabatier ed., 2d ed. 2007) (same).
41. See, e.g., Erik Bleich, Integrating Ideas into Policy-Making Analysis: Frames and Race Policies in Britain and France, 35 Comp. Pol. Stud. 1054, 1062-72 (2002) (noting how European nations had ample information about U.S. policies, or at least general information about U.S. civil rights struggles, through media coverage, but that these countries drew "different lessons from the same stock of available evidence" and adopted divergent policies due to different framings of race issues within these countries and the relevance of particular race issues to each country).
42. See, e.g., Beth A. Simmons & Zachary Elkins, The Globalization of Liberalization: Policy Diffusion in the International Political Economy, 98 Am. Pol. Sci. Rev. 171, 187 (2004) (noting that shared "religious identity" and culture were consistently strong causal factors in an empirical study of the causes of trade liberalization and its spread among countries).
43. See Katherine Linos, Note, When Do Policy Innovations Spread? Lessons for Advocates of Lesson-Drawing, 119 Harv. L. Rev. 1467, 1475 (2006) (examining studies demonstrating that policies with fewer cross-border effects tend to diffuse less among competitive jurisdictions).
44. See Everett M. Rogers, Diffusion of Innovations 276-77 (5th ed. 2003) (describing proximity as one causal factor for the diffusion of innovation).
45. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
46. See Katherine Linos, Note, When Do Policy Innovations Spread? Lessons for Advocates of Lesson-Drawing, 119 Harv. L. Rev. 1467, 1475 (2006) (examining studies demonstrating that policies with fewer cross-border effects tend to diffuse less among competitive jurisdictions).
47. See, e.g., Jack L. Walker, The Diffusion of Innovations Among the American States, 63 Am. Pol. Sci. Rev. 880, 897 (1969) ("Before states may respond to new programs adopted in other states their political leaders must be aware of these developments, so interstate communications are an important factor in the process of diffusion.").
48. Or if the federal government is borrowing approaches from states to create better law, it, too, must know what worked. See David L. Markell, States as Innovators: It's Time for a New Look to Our "Laboratories of Democracy" in the Effort to Improve Our Approach to Environmental Regulation, 58 Alb. L. Rev. 347, 358 (1994) ("[T]he federal government should pay special attention to state and local governments' efforts in determining how best to 'reinvent' itself in terms of environmental regulation."). This Article focuses on the lack of comprehensive and useful information about policy approaches rather than the results of policy experiments.
49. See, e.g., National Conference of State Legislatures, http://www.ncsl.org (last visited Sept. 22, 2014).
50. See, e.g., Jack L. Walker, The Diffusion of Innovations Among the American States, 63 Am. Pol. Sci. Rev. 880, 897 (1969) ("Before states may respond to new programs adopted in other states their political leaders must be aware of these developments, so interstate communications are an important factor in the process of diffusion.").
51. Miriam Seifter, States as Interest Groups in the Administrative Process, 100 Va. L. Rev. 953, 958-59 (2014) (noting that groups of states could "transfer to [federal] agencies states' varied knowledge and experience" but that state interest groups, which tend to report "unified" positions, limit this potentially valuable information transfer).
52. See, e.g., Steven Lee, Mayors Head to Las Vegas for Annual Meeting to Focus on Policy, Engage with National Leaders, Share Best Practices, U.S. Mayor, June 17, 2013, at 4, available at http://www.usmayors.org/usmayornewspaper/documents/06_17_13/ 061713USMayor.pdf (describing items for discussion at a meeting of mayors "from across the country").
53. See, e.g., States, Envtl. Council Sts., http://www.ecos.org/section/states (last visited July 5, 2014) ("One of ECOS's primary objectives is to describe the role States play in environmental protection. To achieve this goal, ECOS has collected data, prepared reports, and released publications on State environmental contributions.").
54. About Us, Groundwater Protection Council, http://www.gwpc.org/about-us (last visited July 5, 2014) ("We provide an important forum for stakeholder communication and research in order to improve governments' role in the protection and conservation of groundwater.").
55. See, e.g., Jacquelyn Pless, Nat'l Conference of State Legislatures, Natural Gas Development and Hydraulic Fracturing: A Policymaker's Guide (2012), available at http://www.ncsl.org/documents/energy/frackingguide_060512.pdf (comparing legislative approaches and explaining recent legislative trends).
56. Miriam Seifter, States as Interest Groups in the Administrative Process, 100 Va. L. Rev. 953, 958-59 (2014) (noting that groups of states could "transfer to [federal] agencies states' varied knowledge and experience" but that state interest groups, which tend to report "unified" positions, limit this potentially valuable information transfer).
57. See Hannah Breul & Linda Doman, U.S. Expected to be Largest Producer of Petroleum and Natural Gas Hydrocarbons in 2013, U.S. Energy Info. Admin. (Oct. 4, 2013), http://www.eia.gov/todayinenergy/detail.cfm?id=13251 (discussing growth of the natural gas industry in the United States)
58. U.S. Energy Info. Admin., U.S. Crude Oil and Natural Gas Proved Reserves (2014), available at http://www.eia.gov/naturalgas/ crudeoilreserves/ (noting that the growth in proved reserves of U.S. natural gas "has been especially pronounced in recent years as a result of expanding exploration and development activity in several of the nation's shale formations," which require hydraulic fracturing to be produced).
59. At the time Resources for the Future (RFF) began working on this project, I was collecting state regulations as part of a separate University of Texas project, and I had a conference call with RFF to explore the two projects and avoid duplication. For a discussion of the University of Texas project, including a conflict of interest that later emerged with respect to the professor who led that project, see Hannah J. Wiseman, Risk and Response in Fracturing Policy, 84 U. Colo. L. Rev. 729 (2013). I later joined RFF's effort to collect and compare regulations.
60. See Nathan Richardson et al., Res. for the Future, The State of State Shale Gas Regulation (2013), available at http://www.rff.org/rff/documents/RFF-Rpt- StateofStateRegs_Report.pdf (describing this study and its results).
61. See, e.g., Jacquelyn Pless, Nat'l Conference of State Legislatures, Natural Gas Development and Hydraulic Fracturing: A Policymaker's Guide (2012), available at http://www.ncsl.org/documents/energy/frackingguide_060512.pdf (comparing legislative approaches and explaining recent legislative trends).
62. See E-mail from Sarah J. Fullenwider, City Att'y, Fort Worth, Tex., to author (Feb. 17, 2014, 10:17 AM) (on file with the New York University Law Review) (noting that when drafting Fort Worth's oil and gas drilling ordinance, a city attorney "started by collecting over 25 city ordinances from across Texas and a few from Oklahoma and California").
63. See, e.g., N.M. Code R. § 19.15.16.10(A) (2014) (requiring casing "as may be necessary to effectively seal off and isolate all water-, oil- and gas-bearing strata"); N.D. Admin. Code 43-02-03-21 (2014) (requiring casing "at sufficient depths to adequately protect and isolate all formations containing water, oil, or gas or any combination of these"); 16 Tex. Admin. Code § 3.13(b)(1)(B)(i) (2014) (requiring operators to "set and cement sufficient surface casing to protect all usable-quality water strata").
64. See Nathan Richardson et al., Res. for the Future, The State of State Shale Gas Regulation (2013), available at http://www.rff.org/rff/documents/RFF-Rpt- StateofStateRegs_Report.pdf (describing this study and its results).
65. See Nathan Richardson et al., Res. for the Future, The State of State Shale Gas Regulation (2013), available at http://www.rff.org/rff/documents/RFF-Rpt- StateofStateRegs_Report.pdf (describing this study and its results).
66. See, e.g., Okla. Admin. Code § 165:10-3-4(c)(7)(A) (2014) (requiring "tubing and pump," "pump and plug," or displacement methods of cementing the casing).
67. See 16 Tex. Admin. Code § 3.1-.107 (2014) (providing many of the oil and gas regulations).
68. E.g., Air Quality Standard Permit for Oil and Gas Handling and Production Facilities, Tex. Comm'n on Envtl. Quality, http://www.tceq.texas.gov/permitting/air/ newsourcereview/chemical/oil_and_gas_sp.html (last modified Jan. 16, 2014).
69. See, e.g., Tex. Loc. Gov't Code Ann. § 253.005(c) (West 2005 & Supp. 2013) (providing that wells must be 200 feet from private residences).
70. In Texas, for example, the Texas Commission on Environmental Quality (TCEQ) regulates oil spills and spills of fracturing fluids and other substances, whereas the Railroad Commission of Texas (RRC) regulates the safety of well casing, the construction of surface pits at well sites, and certain disposal of oil and gas wastes. See 16 Tex. Admin. Code § 3.8 (2014) (showing oil and gas surface pit regulations administered by the RRC).
71. See Commercial Recycling & Surface Disposal Facilities, RR Comm'n of Tex., http://www .rrc.state.tx.us/oil-gas/applications-and-permits/environmental-permit-types-information/ commercial-surface-waste-facilities/commercial-recyclingdisposal-permits-list/ (last visited Sept. 22, 2014) (showing RRC-permitted disposal facilities).
72. Tex. Comm'n on Envtl. Quality, Transporters and Haulers-Commonly Asked Questions, http://www.tceq.texas .gov/assistance/industry/oil-and-gas/oil-and-gas/transporters-and-haulers-commonly-askedquestions ("Waste generated from oil and gas operations may be disposed of at authorized RRC facilities or certain TCEQ regulated landfills."). The RRC, TCEQ, and Texas Department of Public Safety all have some authority over the transport of oil and gas wastes.
73. 16 Tex. Admin. Code § 3.8(f) (2014) (requiring an oil and gas waste hauler permit from the RRC).
74. See, e.g., Am. Petroleum Inst., Overview of Industry Guidance/Best Practices on Hydraulic Fracturing (HF) (2012), available at http://www.api.org/~/ media/Files/Policy/Exploration/Hydraulic_Fracturing_InfoSheet.pdf (summarizing industry-developed voluntary standards that apply to hydraulic fracturing).
75. See, e.g., Fort Worth, Tex., City Code § 15-36(A) (2014) (requiring that wells be set back 600 feet from certain buildings).
76. Many state oil and gas agencies have limited staff and budgets. The Railroad Commission of Texas, the State's oil and gas regulatory agency, notes the following: "Retention of employees in the engineering and technical oilfield disciplines is particularly difficult particularly with the shale boom. Without these employees, progressive regulatory models cannot be implemented, and basic services may begin to deteriorate." David Porter et al., R.R. Comm'n of Tex., Self-Evaluation Report: Submitted to the Sunset Commission September 2011, at 14 (2011), available at https://www.sunset.texas .gov/public/uploads/files/reports/Railroad%20Commission%20SER%202011%2083rd %20Leg.pdf.
77. Hannah J. Wiseman, Remedying Regulatory Diseconomies of Scale, 94 B.U. L. Rev. 235, 255-56, & 255 n.93 (2014).
78. See, e.g., Brandon J. Murrill & Adam Vann, Cong. Research Serv., R42461, Hydraulic Fracturing: Chemical Disclosure Requirements (2012), available at http://www.fas.org/sgp/crs/misc/R42461.pdf (comparing state policies).
79. U.S. Gov't Accountability Office, GAO-12-874, Unconventional Oil and Gas Development: Key Environmental and Public Health Requirements 192-224 (2012), available at http://www.gao.gov/assets/650/647782.pdf (summarizing and comparing selected state requirements in six states)
80. DSIRE: Database of State Incentives for Renewables & Efficiency, http://www.dsireusa.org (last visited July 5, 2014) (collecting information on state incentives and policies, through funding by the U.S. Department of Energy).
81. U.S. Gov't Accountability Office, GAO-13-495R, K-12 Education: States' Test Security Policies and Procedures Varied (2013), available at http://www.gao.gov/assets/660/654721.pdf
82. Data Collection: 2006 Census of State Parole Supervising Agencies, Bureau Just. Stat., http:// www.bjs.gov/index.cfm?ty=dcdetail&iid=258 (last visited July 5, 2014) (describing federal surveys of state parole supervising agencies to better understand their organizational structures and parole procedures).
83. See, e.g., Julie Bataille, Adding Capacity, HHS.gov: Digital Strategy (Nov. 25, 2013), http://www.hhs.gov/digitalstrategy/blog/2013/11/adding-capacity.html ("It's likely that as we move forward we'll find additional glitches and experience intermittent periods of sub-optimal performance, when the system may be slow or not responsive.").
84. See, e.g., Examining the Science of EPA Overreach: A Case Study in Texas: Hearing Before the H. Comm. on Sci., Space, and Tech., 113th Cong. 14, 16-26 (2014), available at http://science.house.gov/sites/republicans.science.house.gov/files/documents/HHRG-113- SY-WState-DPorter-20140205.pdf (providing the written statement of David J. Porter, Tex. R.R. Comm'r, who argues that "[t]he power to regulate [the oil and gas] industry, and many others, has always been an expressed right of individual states, as was the intentions [sic] of our nation's founding fathers," and criticizing the EPA's "overreach" in its investigation of citizen complaints about alleged groundwater contamination from well development in Texas and Pennsylvania).
85. See, e.g., Memorandum from Herbert H. Tate, Jr., Assistant Adm'r, U.S. Envtl. Prot. Agency 4 (May 13, 1992), available at http://www.epa.gov/compliance/resources/policies/ state/multim-agr-mem.pdf (noting that the Office of Enforcement of the EPA "established staff networks to collect and disseminate information about lessons learned" in order "[t]o encourage the use of innovative enforcement tools" in an effort to improve state enforcement of federal environmental laws and the state-federal enforcement relationship, and that the EPA would "solicit information on States' use of innovative enforcement approaches and results and w[ould] share these within EPA and among the states").
86. See David L. Shapiro, Federalism: A Dialogue 91-92 (1995) (arguing that representatives of a smaller electorate are more accountable to the people).
87. See, e.g., Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 906 (1994).
88. See, e.g., Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev. 459 (2012) (observing that states can take up the cause of Congress and challenge executive action).
89. See, e.g., Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 906 (1994).
90. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (opinion of Rehnquist, C.J.) (providing a recent definition of states' police powers).
91. Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 443 (1827).
92. Sonneborn Bros. v. Cureton, 262 U.S. 506 (1923).
93. See E. Ann Carson & Daniela Golinelli, Bureau of Justice Statistics, U.S. Dep't of Justice, Prisoners in 2012 - Advance Counts 3, available at http://www.bjs .gov/content/pub/pdf/p12ac.pdf (listing federal and state prison statistics).
94. See Roberta Romano, The States as a Laboratory: Legal Innovation and State Competition for Corporate Charters, 23 Yale J. on Reg. 209, 210-11 (2006) (noting statecentric regulation and praising it).
95. See Elizabeth F. Brown, Will the Federal Insurance Office Improve Insurance Regulation?, 81 U. Cin. L. Rev. 551, 551 (2012) ("Prior to the financial crisis, insurance was the only financial service that did not have a federal regulator but relied almost exclusively on state insurance regulators.").
96. See Robert A. Garda, Jr. & David S. Doty, The Legal Impact of Emerging Governance Models on Public Education and Its Office Holders, 45 Urb. Law. 21, 23-28 (2013) (describing state education policies, some delegations to local governments, and largely ineffective attempted federal reforms through the No Child Left Behind and Race to the Top initiatives).
97. See, e.g., 42 U.S.C. § 300h-1 (2012) (describing the delegation of federal protection of underground sources of drinking water to the states).
98. U.S. Gov't Accountability Office, GAO-14-67, Dodd-Frank Regulations: Agencies Conducted Regulatory Analyses and Coordinated but Could Benefit from Additional Guidance on Major Rules 14-15, 77-84 (2013).
99. Regulatory Determination for Oil and Gas and Geothermal Exploration, Development and Production Wastes, 53 Fed. Reg. 25,446, 25,446 (July 6, 1988).
100. Our History: Council on Regulatory Needs, STRONGER, http://www.strongerinc .org/content/council-regulatory-needs (last visited July 5, 2014).
101. Our History: Formation of STRONGER, STRONGER, http://www.strongerinc .org/content/formation-stronger (last visited Sept. 22, 2014) (explaining that STRONGER took over the IOGCC's Council on Regulatory Needs' state review process).
102. Miriam Seifter, States as Interest Groups in the Administrative Process, 100 Va. L. Rev. 953, 958-59 (2014) (noting that groups of states could "transfer to [federal] agencies states' varied knowledge and experience" but that state interest groups, which tend to report "unified" positions, limit this potentially valuable information transfer).
103. See Alice Kaswan, Climate Adaptation and Land-Use Governance: The Vertical Axis, 39 Colum. J. Envtl. L. (forthcoming 2014) (manuscript at 20) (on file with author) ("[A]daptation planning is spotty and specific implementation measures are the exception rather than the rule.").
104. See Farmington, N.M., City Code §§ 19-3-1 to -12 (2014) (showing detailed local oil and gas ordinances); infra note 96 (describing regulation by Texas municipalities).
105. See Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. Rev. 1097, 1139-41 (2009) (describing shifting allocations of authority between federal and state actors).
106. Hari M. Osofsky, Diagonal Federalism and Climate Change Implications for the Obama Administration, 62 Ala. L. Rev. 237 (2011) (describing governance strategies that incorporate public and private actors at all vertical levels of government (from the subfederal to the federal and international) and that involve coordination among these actors through horizontal relationships).
107. Erin Ryan, Negotiating Federalism, 52 B.C. L. Rev. 1, 7 (2011) (describing how officials within governments interact across jurisdictional lines).
108. Miriam Seifter, States as Interest Groups in the Administrative Process, 100 Va. L. Rev. 953, 958-59 (2014) (noting that groups of states could "transfer to [federal] agencies states' varied knowledge and experience" but that state interest groups, which tend to report "unified" positions, limit this potentially valuable information transfer).
109. Judith Resnik et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 Ariz. L. Rev. 709, 711 (2008).
110. See Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. Rev. 1097, 1139-41 (2009) (describing shifting allocations of authority between federal and state actors).
111. See, e.g., Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1215 (1977) (noting that "spillover impacts of decisions in one jurisdiction on well-being in other jurisdictions generate conflicts and welfare losses not easily remedied under a decentralized regime").
112. Daniel A. Farber, Environmental Federalism in a Global Economy, 83 Va. L. Rev. 1283, 1301-03 (1997) (noting both environmental and economic spillovers, but arguing that "[a]t best, environmental spillovers provide only a partial justification for much existing multijurisdictional regulation").
113. Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 U.C.L.A. L. Rev. 1353, 1355 (2006) (noting situations "when the experiments of democracy within one state's borders have spillover effects that adversely affect citizens of other states").
114. See, e.g., Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1215 (1977) (noting that "spillover impacts of decisions in one jurisdiction on well-being in other jurisdictions generate conflicts and welfare losses not easily remedied under a decentralized regime").
115. Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking "The Race to the Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1210-11 n.1 (1992) (explaining that Stewart introduced the race to the bottom theory).
116. See, e.g., David B. Spence, Federalism, Regulatory Lags, and the Political Economy of Energy Production, 161 U. Pa. L. Rev. 431, 447 (2013) ("[T]he regulation of oil and natural gas exploration and production in the United States has always been primarily a state matter.").
117. See, e.g., Michael Burger, Fracking and Federalism Choice, 161 U. Pa. L. Rev. Online 150, 162 (2013), http://www.pennlawreview.com/online/161-U-Pa-L-Rev-Online- 150.pdf (arguing that there is a national interest in supporting rural communities and that we may need to consider more federal regulation of oil and gas development)
118. See, e.g., David B. Spence, Federalism, Regulatory Lags, and the Political Economy of Energy Production, 161 U. Pa. L. Rev. 431, 447 (2013) ("[T]he regulation of oil and natural gas exploration and production in the United States has always been primarily a state matter.").
119. See, e.g., Barack Obama, Remarks by the President on Climate Change at Georgetown University (June 25, 2013), available at http://www.whitehouse.gov/the-pressoffice/ 2013/06/25/remarks-president-climate-change ("Today, we use more clean energy- more renewables and natural gas-which is supporting hundreds of thousands of good jobs.").
120. Interview by Judy Woodruff with Gina McCarthy, EPA Administrator, (Oct. 24, 2013), available at http://www.pbs.org/newshour/bb/government_programs/julydec13/ epa_10-24.html ("[W]e're not closing our eyes to the challenges associated with that [hydraulic fracturing for natural gas], because while the president touts the advantage of natural gas, as he should, he's also saying it has to be safe and responsible.").
121. See Lincoln L. Davies, Power Forward: The Argument for a National RPS, 42 Conn. L. Rev. 1339, 1370-71 (2010) (noting that a federal renewable portfolio standard would decrease pollutants).
122. See Alexandra B. Klass & Elizabeth J. Wilson, Interstate Transmission Challenges for Renewable Energy: A Federalism Mismatch, 65 Vand. L. Rev. 1801, 1814 (2012) (describing failed efforts at national transmission policy).
123. At the time Resources for the Future (RFF) began working on this project, I was collecting state regulations as part of a separate University of Texas project, and I had a conference call with RFF to explore the two projects and avoid duplication. For a discussion of the University of Texas project, including a conflict of interest that later emerged with respect to the professor who led that project, see Hannah J. Wiseman, Risk and Response in Fracturing Policy, 84 U. Colo. L. Rev. 729 (2013). I later joined RFF's effort to collect and compare regulations.
124. See Lincoln L. Davies, Power Forward: The Argument for a National RPS, 42 Conn. L. Rev. 1339, 1370-71 (2010) (noting that a federal renewable portfolio standard would decrease pollutants).
125. Exec. Order No. 13,514, 3 C.F.R. § 13514 (2009).
126. See, e.g., Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534, 539-40 (2011) ("Some parts of the [Patient Protection and Affordable Care Act] are unequivocally designed around a presumption favoring state implementation … . The statute … posits concurrent regulation by the states and the lead federal administrative agency … .").
127. Daniel Yergin, The Prize: The Epic Quest for Oil, Money & Power 26-28 (1991).
128. Bruce M. Kramer, Pooling for Horizontal Wells: Can They Teach an Old Dog New Tricks?, 55 Rocky Mt. Min. L. Inst. 8-1 n.5 (noting that although the Drake well is typically described as the first commercial oil well, another oil well might have been drilled as early as 1814).
129. See Ground Water Prot. Council, State Oil and Natural Gas Regulations Designed to Protect Water Resources 12-14 (2009), available at http://www.gwpc.org/sites/default/files/state_oil_and_gas_regulations_designed_to_protect _water_resources_0.pdf (describing the history of oil and gas regulation).
130. At the time Resources for the Future (RFF) began working on this project, I was collecting state regulations as part of a separate University of Texas project, and I had a conference call with RFF to explore the two projects and avoid duplication. For a discussion of the University of Texas project, including a conflict of interest that later emerged with respect to the professor who led that project, see Hannah J. Wiseman, Risk and Response in Fracturing Policy, 84 U. Colo. L. Rev. 729 (2013). I later joined RFF's effort to collect and compare regulations.
131. See Nathan Richardson et al., Res. for the Future, The State of State Shale Gas Regulation (2013), available at http://www.rff.org/rff/documents/RFF-Rpt- StateofStateRegs_Report.pdf (describing this study and its results).
132. Hannah Wiseman & Francis Gradijan, Regulation of Shale Gas Development, Including Hydraulic Fracturing 42 (Jan. 20, 2012) (unpublished manuscript), available at http://ssrn.com/abstract=1953547.
133. Fort Worth, Tex., Ordinance No. 18449-02-2009 (Feb. 3, 2009).
134. Arlington, Tex., Ordinance No. 07-074 § 6.01 (Oct. 23, 2007).
135. See, e.g., Md. Code Regs. 26.19.01.10(P) (2014) (requiring API Class A cement for casing).
136. Supplemental Generic Environmental Impact Statement on the Oil, Gas, and Solution Mining Regulatory Program 7.1.4 (2011) (rev. drft.), available at http://www.dec.ny.gov/ energy/75370.html (proposing to require API Spec. 10A cementing method).
137. See, e.g., 16 U.S.C. § 1538(a) (2012) (Endangered Species Act prohibition on harming species); 40 C.F.R. §§ 435.30, 435.50, 435.52 (2013) (Clean Water Act limits on oil and gas waste disposal).
138. Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews, 77 Fed. Reg. 49490, 49497-98 (Aug. 16, 2012) (to be codified at 40 C.F.R. pts. 60, 63) (limits on air pollutant emissions from fractured and refractured wells).
139. See 42 U.S.C. § 300h(b) (2012) (showing the Safe Drinking Water Act requirements that other injectors must meet).
140. Energy Policy Act of 2005, Pub. L. No. 109-58, §§ 322-23, 119 Stat. 594, 694 (2005) (exempting hydraulic fracturing from the definition of underground injection from the Safe Drinking Water Act and uncontaminated discharges of runoff from oil and gas well sites from the Clean Water Act).
141. Regulatory Determination for Oil and Gas and Geothermal Exploration, Development and Production Wastes, 53 Fed. Reg. 25,446, 25,446 (July 6, 1988).
142. See, e.g., Christina Ross et al., Limiting Liability in the Greenhouse: Insurance Risk- Management Strategies in the Context of Global Climate Change, 26A Stan. Envtl. L.J. 251, 255-259 (2007) (describing the many risks to be addressed).
143. Bruce M. Kramer, Pooling for Horizontal Wells: Can They Teach an Old Dog New Tricks?, 55 Rocky Mt. Min. L. Inst. 8-1 n.5 (noting that although the Drake well is typically described as the first commercial oil well, another oil well might have been drilled as early as 1814).
144. The North American Electric Reliability Corporation, overseen by FERC, writes detailed rules for the reliability of electricity generation and distribution, including rules about the maintenance of transmission lines. See, e.g., N. Am. Elec. Reliability Corp., FAC-003-2-Transmission Vegetation Management 3 (2006), available at http://www .nerc.com/files/fac-003-2.pdf.
145. Transmission Vegetation Management NERC Standard FAC-003-2 Technical Reference 3 (2009), available at http://www.nerc.com/pa/Stand/Project%20200707%20Transmission%20Vegetation%20 Management/FAC-003-2_White_Paper_2009Sept9.pdf
146. Public Service Commission of West Virginia Charleston, Investigation Into Utility Response and Practices Regarding the Recent Summer Storm 2 (2013), available at http://www.psc.state.wv.us/scripts/WebDocket/View Document.cfm?CaseActivityID=360967&NotType=%27WebDocket%27.
147. Daniel A. Farber, Climate Change, Federalism, and the Constitution, 50 Ariz. L. Rev. 879, 880 (2008) (noting that the federal government has shown little initiative in addressing climate change).
148. Exec. Order No. 13,514, 3 C.F.R. § 13514 (2009).
149. Exec. Order No. 13,653, 78 Fed. Reg. 66,819 (Nov. 1, 2013).
150. See Patrick Woolsey, Analysis of Environmental Impact Statements Shows Widely Varying Treatment of Climate Change Risks, Climate L. Blog (Dec. 5, 2011), http:// blogs.law.columbia.edu/climatechange/2011/12/05/analysis-of-environmental-impactstatements- shows-widely-varying-treatment-of-climate-change-risks/ (presenting a study on how federal agencies have incorporated consideration of climate change and greenhouse gas emissions into environmental impact statements).
151. See, e.g., Barry Rabe, Second Generation Climate Policies in the American States: Proliferation, Diffusion, and Regionalization, 6 Issues in Governance Studies 1, 1 (2006) ("[A]t the very time federal institutions continued to thrash about on [climate change], major new initiatives were launched with bipartisan support in such diverse state capitals as Sacramento, Carson City, Santa Fe, Austin, Harrisburg, Albany, and Hartford.").
152. See U.S. Dep't of Energy et al., Database of State Incentives for Renewables & Efficiency, Renewable Portfolio Standard Policies (2013), available at http://www.dsireusa.org/documents/summarymaps/RPS_map.pdf (summarizing variations on state renewable portfolio standards, which require that a certain percentage of electricity come from renewables, and showing the different percentages of deadlines, as well as some states' requirement that a portion of the percentage come from solar or smaller-scale renewables sited on customers' property).
153. Energy Policy Act of 2005 § 1221 (codified at 16 U.S.C. § 824p(a)).
154. See California Wilderness Coal. v. U.S. Dep't of Energy, 631 F.3d 1072, 1079 (9th Cir. 2011) (finding that the DOE failed to adequately consult with states in designating National Interest Electric Transmission Corridors in which FERC has limited transmission line siting authority and noting other problems with the DOE's approach).
155. Piedmont Envtl. Council v. Fed. Energy Regulatory Comm'n, 558 F.3d 304, 313 (4th Cir. 2009) (observing that FERC may only permit transmission lines in construction corridors where states have withheld approval and finding that "withheld" does not include state denials of transmission lines).
156. See, e.g., 26 U.S.C. § 45 (2012) (providing a production tax credit for renewable energy, which expired at the end of 2013).
157. See 18 C.F.R. § 35.28 (requiring regional transmission planning).
158. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,829 (proposed June 18, 2014) (to be codified at 40 C.F.R. pt. 60), available at http://gpo.gov/fdsys/pkg/FR-2014-06-18/pdf/2014-13726.pdf (requiring a "best system of emission reduction" for carbon dioxide emissions from power plants, which includes, among other technologies, more implementation of renewable generating plants).
159. See, e.g., Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534, 539-40 (2011) ("Some parts of the [Patient Protection and Affordable Care Act] are unequivocally designed around a presumption favoring state implementation … . The statute … posits concurrent regulation by the states and the lead federal administrative agency … .").
160. 42 U.S.C. § 18031(b) (2012).
161. State Actions to Address Health Insurance Exchanges, Nat'l Conference of State Legislatures (May 9, 2014) http://www.ncsl.org/issues-research/health/stateactions- to-implement-the-health-benefit.aspx (describing the status of the health insurance exchanges).
162. 42 U.S.C. § 18041 (2012) (allowing states to elect to prescribe standards for establishing healthcare exchanges and "the offering of qualified health plans through such exchanges," and requiring states that have elected this option to either "adopt and have in effect" federal standards or state laws deemed to meet federal standards).
163. See, e.g., Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 906 (1994).
164. See Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. Rev. 1097, 1139-41 (2009) (describing shifting allocations of authority between federal and state actors).
165. See William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/ Ceiling Distinction, 82 N.Y.U. L. Rev. 1547, 1551-52 (2007) (distinguishing between regulatory floors and ceilings).
166. William W. Buzbee, Interaction's Promise: Preemption Policy Shifts, Risk Regulation, and Experimentalism Lessons, 57 Emory L.J. 145, 147-48 (2007) (same).
167. See Hari M. Osofsky, Diagonal Federalism and Climate Change Implications for the Obama Administration, 62 Ala. L. Rev. 237, 267 (2011) (providing a taxonomy of "diagonal regulatory approaches," which involve different sizes of government actors addressing often large problems (such as climate change); horizontal and vertical interactions of government actors, in which actors at one level, such as local, work together, or actors at different levels, such as local and state, interact; hierarchical interactions, in which policies are driven from the top down or bottom up; and varying conflicting and cooperative interactions).
168. In her pathbreaking piece on laboratories of government, Susan Rose-Ackerman assumed that little subfederal innovation occurs because subfederal governments can merely free ride by copying first movers' policies-thus assuming some degree of free information flow, although not benchmarking of any sort. She argued that there will be few first movers in policy innovation because states typically cannot patent their risky policy experiments and thus, in a world of "low cost diffusion," will be quickly copied. Susan Rose-Ackerman, Risk Taking and Reelection: Does Federalism Promote Innovation?, 9 J. Legal Stud. 593, 610-11 (1980).
169. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
170. Hongbin Cai & Daniel Treisman, Political Decentralization and Policy Experimentation (Lab. for Macroeconomic Analysis, Working Paper No. WP13_2007_05, 2007), available at http://policydialogue.org/files/ events/Cai_Treisman_Political_Decentralization_and_Policy_Experimentation.pdf.
171. Michael Abramowicz, Speeding Up the Crawl to the Top, 20 Yale J. on Reg. 139, 157 (2003)).
172. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
173. "Diffusion" refers to when a policy decision "by some governments influences the choices made by others," sometimes causing those governments to adopt similar policies. Beth A. Simmons & Zachary Elkins, The Globalization of Liberalization: Policy Diffusion in the International Political Economy, 98 Am. Pol. Sci. Rev. 171, 171-72 (2004).
174. Michael Burger, Policy Diffusion and the (Re)Federalization of Fracking Regulation, 2014 Mich. St. L. Rev. (forthcoming 2014) (manuscript at 56-61), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2327898
175. Fact Sheet: What We Learned from Pennsylvania, New York State Dept. of Environmental Conservation (July 2011), http://www.dec.ny.gov/energy/75410.html.
176. Cf. Virginia Gray, Innovation in the States: A Diffusion Study, 67 Am. Pol. Sci. Rev. 1174, 1174 (1973) (noting that although "[a]n innovation is generally defined as an idea perceived as new by an individual," in which "the perception takes place after invention of the idea," in some political science studies, "an innovation is more specifically defined as a law which is new to a state adopting it"). This suggests that an idea could disseminate from one state into another and still count as an innovation.
177. See, e.g., Andrew Karch, Democratic Laboratories: Policy Diffusion Among the American States 107 (2007) ("The emergence of new information technologies, such as the Internet, increased the ease and speed with which many organizations can provide policy-relevant information.").
178. See, e.g., Jack L. Walker, The Diffusion of Innovations Among the American States, 63 Am. Pol. Sci. Rev. 880, 897 (1969) ("Before states may respond to new programs adopted in other states their political leaders must be aware of these developments, so interstate communications are an important factor in the process of diffusion.").
179. See, e.g., Andrew Karch, Democratic Laboratories: Policy Diffusion Among the American States 107 (2007) ("The emergence of new information technologies, such as the Internet, increased the ease and speed with which many organizations can provide policy-relevant information.").
180. Alan Rosenthal, The Third House: Lobbyists and Lobbying in the States 4, 194-97 (1993) (describing lobbyists' role in processing and packaging information for legislators, including information about various states' policy approaches and policy issues).
181. See Frances Stokes Berry & William D. Berry, State Lottery Adoptions as Policy Innovations: An Event History Analysis, 84 Am. Pol. Sci. Rev. 395, 396 (1990) ("It is unrealistic to assume that a state blindly emulates its neighbors' policies without its public officials being influenced by the political and economic environment of their own state.").
182. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
183. These variations, as opposed to widely divergent approaches, can be exceedingly important because voters must vote on "packages." See Lee Ann Fennell, Contracting Communities, 2004 U. Ill. L. Rev. 829, 875 (noting this problem in the context of obtaining information regarding servitudes from homebuyers). All voters might prefer similar things-a minimum level of services and environmental protection, for example- but they might demand different nuance on the edges. Voters choosing among rule sets with slight differences might be able to better signal their preference or distaste for particular rules within a rule package.
184. See, e.g., Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. 753, 755-56 (2006) (arguing that both the executive and judiciary overcome their informational disadvantage by forcing information out of the agencies in the form of detail, polish, and thoroughness of their explanations).
185. Michael Burger, Policy Diffusion and the (Re)Federalization of Fracking Regulation, 2014 Mich. St. L. Rev. (forthcoming 2014) (manuscript at 56-61), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2327898
186. See, e.g., Beth A. Simmons & Zachary Elkins, The Globalization of Liberalization: Policy Diffusion in the International Political Economy, 98 Am. Pol. Sci. Rev. 171, 187 (2004) (noting that shared "religious identity" and culture were consistently strong causal factors in an empirical study of the causes of trade liberalization and its spread among countries).
187. See James W. Coleman, Unilateral Climate Regulation, 38 Harv. Envtl. L. Rev. 87, 115-16 (2014) (suggesting in the climate context that "simpler numerical performance standards might be preferable to more flexible multi-factor tests" in part because "domestic regulation can only serve as a model for foreign nations if those nations can determine what that regulation is").
188. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 287 (1998).
189. See, e.g., Andrew Karch, Democratic Laboratories: Policy Diffusion Among the American States 107 (2007) ("The emergence of new information technologies, such as the Internet, increased the ease and speed with which many organizations can provide policy-relevant information.").
190. In a world of costless information, people would also need to know the most recent court interpretations of these statutes and regulations.
191. For a discussion of the growth of the number of wells, see David A. Dana & Hannah J. Wiseman, A Market Approach to Regulating the Energy Revolution: Assurance Bonds, Insurance, and the Certain and Uncertain Risks of Hydraulic Fracturing, 99 Iowa L. Rev. 1523, 1541-42 (2014).
192. At the time Resources for the Future (RFF) began working on this project, I was collecting state regulations as part of a separate University of Texas project, and I had a conference call with RFF to explore the two projects and avoid duplication. For a discussion of the University of Texas project, including a conflict of interest that later emerged with respect to the professor who led that project, see Hannah J. Wiseman, Risk and Response in Fracturing Policy, 84 U. Colo. L. Rev. 729 (2013). I later joined RFF's effort to collect and compare regulations.
193. See E. Res., Inc., DelCiotto No. 2, Subsurface Natural Gas Release Report: Roaring Branch, McNett Township, Lycoming County, Pennsylvania 4-5, 10 (2009) (on file with the New York University Law Review) (describing, in document obtained by the author through a public records request, a methane leak and why it occurred).
194. Hannah Wiseman & Francis Gradijan, Regulation of Shale Gas Development, Including Hydraulic Fracturing 42 (Jan. 20, 2012) (unpublished manuscript), available at http://ssrn.com/abstract=1953547.
195. See Daniel J. Rozell & Sheldon J. Reaven, Water Pollution Risk Associated with Natural Gas Extraction from the Marcellus Shale, 32 Risk Analysis 1382, 1384 (2012) (describing likely total volume of spills in the Marcellus shale).
196. At the time Resources for the Future (RFF) began working on this project, I was collecting state regulations as part of a separate University of Texas project, and I had a conference call with RFF to explore the two projects and avoid duplication. For a discussion of the University of Texas project, including a conflict of interest that later emerged with respect to the professor who led that project, see Hannah J. Wiseman, Risk and Response in Fracturing Policy, 84 U. Colo. L. Rev. 729 (2013). I later joined RFF's effort to collect and compare regulations.
197. As of the end of calendar year 2013, there were a total of 288,965 registered New York attorneys. N.Y. State Unified Court Sys. Office of Court Admin., Attorney Registration Unit, Location of Registered NY Attorneys as of the End of Calendar Year 2013, at 1 (2014) (on file with the New York University Law Review). Of that total, 169,756 reported a business address, or if no business their home address, within New York State.
198. Alamo Area Council of Gov'ts & Tex. Comm'n on Envtl. Quality, Oil and Gas Emission Inventory Improvement Plan, Eagle Ford, Technical Proposal (2012), available at https://www.aacog.com/DocumentCenter/View/8286 (same).
199. Pa. Dep't of Envtl. Prot., Northcentral Pennsylvania Marcellus Shale ShortTerm Ambient Air Sampling Report 2 (May 6, 2011), available at http://www .dep.state.pa.us/dep/deputate/airwaste/aq/aqm/docs/Marcellus_NC_05-06-11.pdf (same).
200. See, e.g., Duke University, Eagle Ford Boosts Government Revenue Across Southern Texas, Shale Public Finance (Jan. 17, 2014, 4:38 PM), http://sites.duke.edu/shalepublic finance/2014/01/17/eagle-ford-boosts-government-revenue-across-southern-texas (describing economic benefits from shale gas and oil production in Texas).
201. Cf. Williston Econ. Dev., Williston Impact Statement 6 (2014), available at http://www.willistonnd.com/usrimages/Williston_Impact_Statement.pdf (in an area experiencing a shale oil boom, describing numerous land use cases in which applicants have requested permission to build multi-family and single-family units as well as mobile homes).
202. See City of Williston, Impact Statement 7 (2012), available at http://issuu.com/ ubetwon/docs/williston_impact_statement (showing rising demand in fire and emergency response services).
203. For a summary of some of these state codes, see Regulations by State, FracFocus, http://fracfocus.org/regulations-state (last visited Sept. 23, 2014).
204. Hannah Wiseman & Francis Gradijan, Regulation of Shale Gas Development, Including Hydraulic Fracturing 42 (Jan. 20, 2012) (unpublished manuscript), available at http://ssrn.com/abstract=1953547.
205. See, e.g., Farmington, N.M. Code of Ordinances § 19-2-102 (2014), available at http://library.municode.com/index.aspx?clientId=10760.
206. Summary of State Statutes and Regulations, Interstate Oil and Gas Compact Commission, http://iogcc.ok.gov/state-statutes (last visited Sept. 23, 2014).
207. See, e.g., Interstate Oil & Gas Compact Commission, Texas 26, available at http://iogcc.ok.gov/Websites/iogcc/images/2013_SOS/Texas2012.pdf (showing "5. Disposal of flowback fluids: a. Retaining pits: Authorized (on-lease) or permitted (off-lease or centralized or commercia)").
208. Interstate Oil & Gas Compact Commission, West Virginia 5, available at http://iogcc.ok.gov/Websites/iogcc/images/2013_SOS/ WestVirginia2012.pdf (showing "5. Disposal of Flowback Fluids: a. Retaining pit: Yes," and including many blank spaces next to, for example, "Cementing log required," "Pressure testing," and "Pressure monitoring").
209. I describe this conclusion as controversial because sources then and since have questioned the adequacy of certain regulations. See, e.g., William J. Brady & James P. Crannell, Hydraulic Fracturing Regulation in the United States: The Laissez-Faire Approach of the Federal Government and Varying State Regulations, 14 Vt. J. Envtl. L. 39, 68 (2012) (concluding that state regulations "vary widely in their complexity and level of protection of human health and the environment").
210. Hannah Wiseman, Untested Waters: The Rise of Hydraulic Fracturing in Oil and Gas Production and the Need to Revisit Regulation, 20 Fordham Envtl. L. Rev. 115, 127-40 (2009) (describing an earlier Ground Water Protection Council survey, suggesting caution in drawing broad conclusions from the survey's results, and noting that the Council had formally opposed federal regulation of fracturing).
211. At the time Resources for the Future (RFF) began working on this project, I was collecting state regulations as part of a separate University of Texas project, and I had a conference call with RFF to explore the two projects and avoid duplication. For a discussion of the University of Texas project, including a conflict of interest that later emerged with respect to the professor who led that project, see Hannah J. Wiseman, Risk and Response in Fracturing Policy, 84 U. Colo. L. Rev. 729 (2013). I later joined RFF's effort to collect and compare regulations.
212. Hannah Wiseman, Untested Waters: The Rise of Hydraulic Fracturing in Oil and Gas Production and the Need to Revisit Regulation, 20 Fordham Envtl. L. Rev. 115, 127-40 (2009) (describing an earlier Ground Water Protection Council survey, suggesting caution in drawing broad conclusions from the survey's results, and noting that the Council had formally opposed federal regulation of fracturing).
213. Ground Water Protection Council, State Oil and Natural Gas Regulations Designed to Protect Water Resources, Regulations Reference Document (May 27, 2009) (on file with New York University Law Review).
214. See E-mail from Mike Nickolaus, Special Projects Dir., Ground Water Protection Council, to author (Apr. 23, 2014, 2:00 PM) (on file with New York University Law Review) (providing the Regulations Reference Document upon the author's request).
215. See Nathan Richardson et al., Res. for the Future, The State of State Shale Gas Regulation (2013), available at http://www.rff.org/rff/documents/RFF-Rpt- StateofStateRegs_Report.pdf (describing this study and its results).
216. See E-mail from Nathan Richardson, Resident Scholar, Resources for the Future, to author (Nov. 12, 2013, 3:55 PM) (on file with New York University Law Review) (explaining that the assistance of experts was necessary even though a talented research assistant did "the hardest legwork").
217. See E-mail from Jim Efstathiou, Jr., Energy & Env't Reporter, Bloomberg News, to author (June 6, 2013, 4:08 PM) (on file with New York University Law Review) ("I think we're going to end up taking [the baseline testing] part out of the story until we get a more complete list.").
218. See William Cranch et al., Harvard Law School, Responding to Landowner Complaints of Water Contamination from Oil and Gas Activity: Best Practices 15-16 (2014), available at http://blogs.law.harvard.edu/environmentallaw program/files/2014/05/Landowner-Complaints-Water-Contamination_Oil-and-Gas-Activi ty_FINAL.pdf (identifying and comparing baseline testing requirements).
219. Michael Burger, Policy Diffusion and the (Re)Federalization of Fracking Regulation, 2014 Mich. St. L. Rev. (forthcoming 2014) (manuscript at 56-61), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2327898
220. N.Y. State Dep't of Envtl. Conservation, Fact Sheet: What We Learned from Pennsylvania (2011), available at http://www.dec.ny.gov/docs/administration_pdf/pafactsheet072011.pdf (showing New York's use of lessons from Pennsylvania but finding few other examples of learning or diffusion).
221. 27 Tex. Reg. 4265, 4282 (May 17, 2002).
222. See Our History, STRONGER, http://www.strongerinc.org/content/councilregulatory- needs (last visited June 22, 2014) (noting that the EPA/IOGCC Study of State Regulation of Oil and Gas Exploration and Production Waste is "commonly known" as the "Green Book" and that this book was the product of an IOGCC regulatory survey and includes comprehensive summaries of state programs).
223. See What We Do, IOGCC, http://iogcc.publishpath.com/what-we-do (last visited June 29, 2014) (noting that the Commission "advocates states' rights to govern petroleum resources within their borders").
224. Telephone Interview with Leslie Savage, Chief Geologist, Oil & Gas Div., R.R. Comm'n of Tex. (Mar. 5, 2014).
225. 16 Tex. Admin. Code § 3.29 (2014).
226. Telephone Interview with Leslie Savage, Chief Geologist, Oil & Gas Div., R.R. Comm'n of Tex. (Mar. 5, 2014).
227. Colo. Code Regs. § 404-1:205A (2014).
228. Telephone Interview with Leslie Savage, Chief Geologist, Oil & Gas Div., R.R. Comm'n of Tex. (Mar. 5, 2014).
229. See, e.g., 26 U.S.C. § 45 (2012) (providing a production tax credit for renewable energy, which expired at the end of 2013).
230. As of the end of calendar year 2013, there were a total of 288,965 registered New York attorneys. N.Y. State Unified Court Sys. Office of Court Admin., Attorney Registration Unit, Location of Registered NY Attorneys as of the End of Calendar Year 2013, at 1 (2014) (on file with the New York University Law Review). Of that total, 169,756 reported a business address, or if no business their home address, within New York State.
231. E-mail from James A. Martin, Chief, Office of Oil & Gas, W. Va. Dep't of Envtl. Prot., to author (Feb. 17, 2014, 5:08 PM) (on file with New York University Law Review).
232. Regulations by State, FracFocus, http://fracfocus.org/regulations-state (last visited June 29, 2014).
233. See, e.g., 26 U.S.C. § 45 (2012) (providing a production tax credit for renewable energy, which expired at the end of 2013).
234. See, e.g., Tex. Loc. Gov't Code Ann. § 253.005(c) (West Supp. 2013) (providing a required oil and gas well setback within the state's land use code).
235. Hydraulic Fracturing Regulations, IOGCC Groundwork, http://groundwork.iogcc .org/topics-index/hydraulic-fracturing/hydraulic-fracturing-regulations (last visited June 29, 2014).
236. See About Us, Intermountain Oil & Gas BMP Project, http://www .oilandgasbmps.org/about_us/index.php (last visited June 22, 2014) (listing as partners state agencies from Colorado, Montana, New Mexico, Utah, and Wyoming, in addition to the U.S. Forest Service and the Bureau of Land Management).
237. See Intermountain Oil & Gas BMP Project, http://www.oilandgasbmps.org (last visited June 22, 2014) (collecting a variety of regulations and standards that address many different risk areas).
238. See, e.g., Farmington, N.M. Code of Ordinances § 19-2-102 (2014), available at http://library.municode.com/index.aspx?clientId=10760.
239. Arlington, Tex., Ordinances Governing Gas Drilling & Production § 6.01(C)(4) (2011), available at http://www .arlington-tx.gov/cityattorney/wp-content/uploads/sites/15/2014/05/GasDrilling-Chapter .pdf.
240. Fort Worth, Tex., Code of Ordinances § 15-41(C)(4) (2014), available at http:// www.amlegal.com/library/tx/ftworth.shtml (requiring, in each city, $5 million in environmental liability insurance and containing other similar provisions).
241. See Mun. Code Corp., http://www.municode.com (last visited June 22, 2014) (noting that MuniCode provides more than 2900 online codes).
242. Company History, Mun. Code Corp., http://www.municode.com/About-Us (last visited June 22, 2014).
243. See E-mail from Sarah J. Fullenwider, City Att'y, Fort Worth, Tex., to author (Feb. 17, 2014, 10:17 AM) (on file with the New York University Law Review) (noting that when drafting Fort Worth's oil and gas drilling ordinance, a city attorney "started by collecting over 25 city ordinances from across Texas and a few from Oklahoma and California").
244. Cal. Emergency Mgmt. Agency & Cal. Natural Res. Agency, California Adaptation Planning Guide: Planning for Adaptive Communities (2012), available at http://www.ca-ilg.org/sites/main/files/file-attachments/1apg_planning_for_adap tive_communities_1.pdf.
245. Cal. Emergency Mgmt. Agency & Cal. Natural Res. Agency, California Adaptation Planning Guide: Identifying Adaptation Strategies, at i (2012), available at http://resources.ca.gov/climate_adaptation/docs/APG_Identifying_Adaptation _Strategies.pdf.
246. See W. Water Assessment, Colorado Climate Preparedness Project: Final Report (2011), available at http://www.coloadaptationprofile.org/templates/ClimateDBNew/ images/CCPP_final_report.pdf (listing authors from the University of Colorado- Boulder and Stratus Consulting).
247. Colo. Climate Preparedness Project, http://www.coloadaptationprofile.org (last visited June 30, 2014).
248. Fla. Dep't of Health, State and Regional Resources, Fla. Health, http://www .floridahealth.gov/healthy-environments/climate-and-health/state-and-regional-resources .html (last visited July 6, 2014).
249. Fla. Dep't of Econ. Opportunity, How Countries, States, and Florida Address Sea Level Rise, available at http://www.floridajobs.org/fdcp/dcp/ AdaptationPlanning/CompendiumNationalStateLocalAdaptationProjects.pdf.
250. Exec. Order No. 13,514, 3 C.F.R. § 13514 (2009).
251. Coastal Climate Adaptation, NOAA Coastal Servs. Ctr., http:// collaborate.csc.noaa.gov/climateadaptation/default.aspx (last visited July 6, 2014).
252. Adaptation/Action Plans, NOAA Coastal Servs. Ctr., http://collaborate.csc.noaa .gov/climateadaptation/Lists/Resources/AdaptationAction%20Plans.aspx (last visited June 23, 2014).
253. Heat Island Effect: Where You Live, EPA, http://yosemite.epa.gov/gw/heatisland.nsf/ webpages/HIRI_Initiatives.html (last visited June 23, 2014).
254. See About, CAKE, http://www.cakex.org/about (last visited June 23, 2014) (explaining that the Exchange was founded by EcoAdapt and Island Press and is run by EcoAdapt).
255. About EcoAdapt, EcoAdapt, http://www.ecoadapt.org/about (last visited June 23, 2014).
256. About Island Press, Island Press, http://www.islandpress.com/press/about.html (last visited June 23, 2014).
257. Case Studies, CAKE, http://www.cakex.org/case-studies (last visited July 6, 2014).
258. CASES Database and Adaptation Library, Climate Impacts Grp., http:// cses.washington.edu/cig/cases (last visited July 6, 2014).
259. Search the CASES Database, Climate Impacts Grp., http://cses.washington.edu/cig/ cases/search (last visited July 6, 2014).
260. Judith Resnik et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 Ariz. L. Rev. 709, 711 (2008).
261. See, e.g., Poh Poh Wong et al., Coastal Systems and Low-Lying Areas, in Climate Change 2014, at 4 (2014), available at http://ipcc-wg2.gov/AR5/images/uploads/ WGIIAR5-Chap5_FGDall.pdf ("The GMSL (global mean sea level) rise is projected to be 0.28-0.98 m by 2100 … although with regional variations and local factors the local sea level rise can be higher than the projected [sic] for the GMSL. This has serious implications for coastal cities, deltas and low-lying states.").
262. See, e.g., Colo. Rev. Stat. § 40-2-124(c) (2013) (requiring that qualifying retail utilities generate a minimum of thirty percent of retail electricity sales in Colorado for the years 2020 and thereafter from certain types of recycled and renewable energy resources).
263. See, e.g., Colo. Code Regs. §§ 723-3:3650 to 723-3:3668 (2014) (prescribing regulations implementing Colorado's renewable energy requirements). DSIRE helpfully provides links to all relevant renewable energy legislation and regulation in Colorado, including this renewable energy mandate.
264. Colorado Renewable Energy Standard, DSIRE (last updated June 25, 2013), http://www.dsireusa.org/incentives/incentive.cfm?Incentive_ Code=CO24R.
265. Judith Resnik et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 Ariz. L. Rev. 709, 711 (2008).
266. See Hari M. Osofsky, Suburban Climate Change Efforts: Possibilities for Small and Nimble Cities Participating in State, Regional, National, and International Networks, 22 Cornell J.L. & Pub. Pol'y 395, 441 (2012) (describing the participation of a number of Twin Cities suburbs in voluntary networks that assisted the suburbs in developing climate change policies).
267. Lesley K. McAllister, Regional Climate Regulation: From State Competition to State Collaboration, 1 San Diego J. Climate & Energy L. 81, 99 (2009).
268. State Energy Analysis Tool, Georgetown Climate Ctr., http://www.stateenergyan alysis.org (last visited July 6, 2014).
269. N.C. State Univ., DSIRE, http://www.dsireusa.org (last visited July 6, 2014).
270. See, e.g., DSIRE, Renewable Portfolio Standard Policies (2013), available at http://www.dsireusa.org/documents/summarymaps/RPS_map.pdf (mapping states' requirements for the percentage of electricity that must come from renewable energy sources).
271. See, e.g., Arizona Renewable Energy Standard, DSIRE, http://www.dsireusa.org/in centives/incentive.cfm?Incentive_Code=AZ03R&re=1&ee=0 (summarizing and linking to Arizona's renewable energy regulations) (last updated July 17, 2013).
272. See, e.g., DSIRE, Renewable Portfolio Standard Policies (2013), available at http://www.dsireusa.org/documents/summarymaps/RPS_map.pdf (mapping states' requirements for the percentage of electricity that must come from renewable energy sources).
273. See, e.g., Financial Incentives for Renewable Energy, DSIRE, http://www.dsireusa .org/summarytables/finre.cfm (last visited July 6, 2014) (comparing government, utility, and non-profit policies incentivizing renewable energy in each state).
274. State & Regional Climate Policy Tracking, EPA, http://epa.gov/statelocalclimate/ state/tracking/index.html. (last updated Apr. 2, 2014).
275. See State Marketplace Resources, Ctrs. for Medicare & Medicaid Servs., http:// www.cms.gov/CCIIO/Programs-and-Initiatives/Health-Insurance-Marketplaces/State- Marketplace-Resources.html (last visited June 23, 2014) (noting that funding under federal State Planning and Establishment Grants enabled by the Affordable Care Act "will give states the resources to conduct the research and planning needed to build a better health insurance marketplace and determine how their marketplace will be operated and governed").
276. See Richard Cauchi, State Actions to Address Health Insurance Exchanges, Nat'l Conference of State Legislatures (May 9, 2014), http://www.ncsl.org/research/health/ state-actions-to-implement-the-health-benefit.aspx (summarizing, in map form, the type of exchange each state has chosen to run).
277. See Regulations by State, FracFocus, http://fracfocus.org/regulations-state (last visited June 26, 2014) (providing regulatory summaries in addition to a chemical disclosure tool).
278. See State by State, U.S. Dep't of Health & Human Servs., http://www.hhs.gov/ healthcare/facts/bystate/statebystate.html (last visited June 26, 2014) (organizing information about the Affordable Care Act by state).
279. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
280. See, e.g., Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. 753, 755-56 (2006) (arguing that both the executive and judiciary overcome their informational disadvantage by forcing information out of the agencies in the form of detail, polish, and thoroughness of their explanations).
281. See, e.g., Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. 753, 755-56 (2006) (arguing that both the executive and judiciary overcome their informational disadvantage by forcing information out of the agencies in the form of detail, polish, and thoroughness of their explanations).
282. See, e.g., Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. 753, 755-56 (2006) (arguing that both the executive and judiciary overcome their informational disadvantage by forcing information out of the agencies in the form of detail, polish, and thoroughness of their explanations).
283. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
284. See generally Stephen Clowney, Property in Law: Government Rights in Legal Innovations, 72 Ohio St. L.J. 1 (2011) (expounding the benefits of granting state and local governments intellectual property protection for their statutory texts).
285. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
286. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
287. Health Reform and State Health Legislative Initiatives, Nat'l Conference of State Legislatures, http://www.ncsl.org/issues-research/health/2012-health-insurance-reformstate- laws.aspx (last visited June 26, 2014) (introducing and summarizing reports).
288. See, e.g., Jacquelyn Pless, Nat'l Conference of State Legislatures, Natural Gas Development and Hydraulic Fracturing: A Policymaker's Guide (2012), available at http://www.ncsl.org/documents/energy/frackingguide_060512.pdf (comparing legislative approaches and explaining recent legislative trends).
289. Miriam Seifter, States as Interest Groups in the Administrative Process, 100 Va. L. Rev. 953, 958-59 (2014) (noting that groups of states could "transfer to [federal] agencies states' varied knowledge and experience" but that state interest groups, which tend to report "unified" positions, limit this potentially valuable information transfer).
290. Among other programs, the GWPC runs a risk-based data management system (RBDMS)-a computer database with thousands of fields into which states can input oil and gas well information and enforcement information. States select an RBDMS tailored to their individual circumstances and choose the fields that they wish to include. The GWPC also recommends state policy changes. See, e.g., Scott R. Kell, President, Ground Water Protection Council, Address Before the H. Comm. On Natural Res., (May 27, 2009), in Dep't of Envtl. Conservation, Revised Draft SGEIS on the Oil, Gas and Solution Mining Regulatory Program app. 15 (2011), available at http://www.dec.ny .gov/docs/materials_minerals_pdf/rdsgeisapp150911.pdf (suggesting regulatory updates).
291. See Regulations by State, FracFocus, http://fracfocus.org/regulations-state (last visited June 26, 2014) (providing regulatory summaries in addition to a chemical disclosure tool).
292. Ground Water Protection Council Resolution 03-05, Requesting Legislative Clarification of the Definition of "Underground Injection" in the Safe Drinking Water Act, Sept. 17, 2003 (resolving "that the Ground Water Protection Council does hereby continue to encourage Congressional legislation clarifying … the definition of underground injection in Part C of the Safe Drinking Water Act to exclude the practice of hydraulic fracturing").
293. See, e.g., Letter from Scott R. Kell, Deputy Chief, Ohio Dep't. of Natural Res., Div. of Mineral Res. Mgmt., to Mike Paque, Exec. Dir., Ground Water Protection Council (May 27, 2009).
294. See Letter from Victor G. Carrillo, Chairman, R.R. Comm'n of Tex., to Mike Paque, Exec. Dir., Ground Water Protection Council (May 29, 2009).
295. Letter from David E. Bolin, Deputy Dir., State Oil and Gas Bd. of Ala., to Mike Paque, Exec. Dir., Ground Water Protection Council (May 27, 2009).
296. Scott A. Keller, Depoliticizing Judicial Review of Agency Rulemaking, 84 Wash. L. Rev. 419, 425-27 (2009) (supporting a soft hard-look doctrine when agencies act in their area of technical expertise in order to avoid judicial policymaking).
297. Letter from David E. Bolin, Deputy Dir., State Oil and Gas Bd. of Ala., to Mike Paque, Exec. Dir., Ground Water Protection Council (May 27, 2009).
298. Hannah Wiseman, Untested Waters: The Rise of Hydraulic Fracturing in Oil and Gas Production and the Need to Revisit Regulation, 20 Fordham Envtl. L. Rev. 115, 127-40 (2009) (describing an earlier Ground Water Protection Council survey, suggesting caution in drawing broad conclusions from the survey's results, and noting that the Council had formally opposed federal regulation of fracturing).
299. Jacquelyn Pless, Fracking Update: What States are Doing to Ensure Safe Natural Gas Extraction, Nat'l Conference of State Legislatures, http://www.ncsl.org/research/ energy/fracking-update-what-states-are-doing.aspx (last updated July 2011) (in providing legislative updates, suggesting through its title that states are ensuring "safe natural gas extraction").
300. Richard Cauchi, State Actions to Address Health Insurance Exchanges, Nat'l Conference of State Legislatures (Sept. 8, 2014), http://www.ncsl.org/research/ health/state-actions-to-implement-the-health-benefit.aspx.
301. State Health Insurance Mandates and the ACA Essential Benefits Provisions, Nat'l. Conference of State Legislatures, http://www.ncsl.org/research/health/state-insmandates- and-aca-essential-benefits.aspx (last visited June 28, 2014).
302. Health Insurance Exchanges or Marketplaces: State Actions, Nat'l Conference of State Legislatures, http://www.ncsl.org/Portals/1/Documents/Health/Health_Insurance _Exchanges_State_Profiles_OCT18.pdf (last updated Oct. 11, 2013).
303. David A. Dana & Hannah J. Wiseman, A Market Approach to Regulating the Energy Revolution: Assurance Bonds, Insurance, and the Certain and Uncertain Risks of Hydraulic Fracturing, 99 Iowa L. Rev. 1523, 1555 (2014) (discussing potential problems of capture in the oil and gas context).
304. Mike Soraghan, Industry Pours Campaign Cash into State, Local Races, E&E Publ'g LLC (Dec. 9, 2011), http://www.eenews.net/stories/1059957451 (concluding that "[o]f the $264 million the [oil and gas] industry's executives and political action committees spent on candidates since 2001, 46 percent went to state candidates," describing contributions to state oil and gas agency commissioners, and describing the Interstate Oil and Gas Conservation Commission's "rewards" given to industry donors, such as complimentary registrations at its conference and "logo placement on the 'conference promotional giveaway,'" but not providing conclusive proof of a situation in which industry influence changed an agency official's decision).
305. David B. Spence, Federalism, Regulatory Lags, and the Political Economy of Energy Production, 161 U. Pa. L. Rev. 431, 507 (2013)
306. Clayton P. Gillette & James E. Krier, Risk, Courts, and Agencies, 138 U. Pa. L. Rev. 1027, 1066-67 (1990) (concluding that "interest groups express their views by these means [including monetary contributions] … does not necessarily imply tawdry politics" but that "some groups enjoy a comparative advantage in catering to administrative needs and desires").
307. See, e.g., Bakken Helps North Dakota Surpass Oil Production Record, Billings Gazette, Nov. 25, 2011, available at http://billingsgazette.com/news/state-and-regional/ montana/bakken-helps-north-dakota-surpass-oil-production-record/article_fa857924-1788- 11e1-902a-001cc4c03286.html (describing unprecedented levels of oil production in North Dakota due to a shale oil boom).
308. See, e.g., Matthew J. McKinney, Negotiated Rulemaking: Involving Citizens in Public Decisions, 60 Mont. L. Rev. 499, 523 (1999) (noting that for general state agency headquarinteraction with industry and other stakeholders (not specifically in the oil and gas context), "many agencies do rely on informal consultations to involve citizens and stakeholders in the process of drafting administrative rules").
309. Cf. Mark Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 Ohio St. L.J. 251, 303-04 (2009) (noting that for substantial rulemaking efforts, a team of agency staff is usually responsible for proposing and honing down policies). This repeated process can generate expertise within this team and familiarity with agency rules.
310. Thomas O. McGarity, The Internal Structure of EPA Rulemaking, 54 Law & Contemp. Probs. 57, 92-93 (Autumn 1991).
311. On the other hand, in industries where one bad actor could substantially damage the entire industry-as with offshore drilling-industry actors might be highly incentivized to share various state and local policies to encourage all actors to comply. I am grateful to Professor David Spence for providing this "bad apple" insight in this context.
312. But see generally Thomas E. Kurth et al., American Law and Jurisprudence on Fracing - 2012, Haynes and Boone, available at http://www.haynesboone.com/files/ Uploads/Documents/Attorney%20Publications/CURRENT_RMMLF%20Fracing%20 2012%20Paper_Formatted.pdf (providing some regulatory summaries and a description of which agencies governed in oil and gas states in 2012).
313. See, e.g., Ernest J. Moniz et al., The Future of Natural Gas: An Interdisciplinary MIT Study app. 2D, at 4, available at http://mitei.mit.edu/system/files/ NaturalGas_Appendix2D.pdf (describing the importance of "[l]ease rates and the capital costs involved in drilling and completing wells").
314. See, e.g., Chesapeake's Oklahoma City Campus, Chesapeake Energy, http://www .chk.com/About/Campus/Pages/Information.aspx (last visited Oct. 10, 2014) (showing that Chesapeake is headquartered in Oklahoma).
315. There are approximately 620 Chesapeake wells in Pennsylvania. See PA DEP Oil & Gas Reporting Website, Pa. Dep't of Envt'l Prot., https://www.paoilandgasreporting .state.pa.us/publicreports/Modules/Production/ProductionByOperator.aspx (last visited Oct. 10, 2014) (select "Unconventional Only," then "Chesapeake Appalachia LLC" for "Operator Name" and "Jul-Dec 2013 (Unconventional wells)" for Reporting Period) (showing 620 records).
316. See The Vinson & Elkins Shale and Fracking Tracker, Vinson & Elkins, http:// fracking.velaw.com (last visited Oct. 10, 2014) ("Our Shale and Fracking Tracker focuses on legal, regulatory and other newsworthy developments that affect our clients involved in recovering oil and gas from the emerging shale plays.").
317. But see generally Thomas E. Kurth et al., American Law and Jurisprudence on Fracing - 2012, Haynes and Boone, available at http://www.haynesboone.com/files/ Uploads/Documents/Attorney%20Publications/CURRENT_RMMLF%20Fracing%20 2012%20Paper_Formatted.pdf (providing some regulatory summaries and a description of which agencies governed in oil and gas states in 2012).
318. But see generally Thomas E. Kurth et al., American Law and Jurisprudence on Fracing - 2012, Haynes and Boone, available at http://www.haynesboone.com/files/ Uploads/Documents/Attorney%20Publications/CURRENT_RMMLF%20Fracing%20 2012%20Paper_Formatted.pdf (providing some regulatory summaries and a description of which agencies governed in oil and gas states in 2012).
319. See, e.g., Henry B. Hansmann, The Role of Nonprofit Enterprise, 89 Yale L.J. 835, 848 (1980) (noting "the prevalence of nonprofits as private-market producers of what economists term 'public goods'").
320. See Evelyn Brody, Agents Without Principals: The Economic Convergence of the Nonprofit and For-Profit Organizational Forms, 40 N.Y.L. Sch. L. Rev. 457, 470 (1996) (noting that "[i]n many cases, no donor or group of donors effectively influences nonprofit policy" because these nonprofits do not rely on donations, but that in other cases donors influence nonprofit choices).
321. Dana Brakman Reiser, Enron.org: Why Sarbanes-Oxley Will Not Ensure Comprehensive Nonprofit Accountability, 38 U.C. Davis L. Rev. 205, 210-11 (2004) ("Failure to follow through on donors' explicit demands, or even on their implicit understandings, can spark intense feelings on the part of donors who feel duped.").
322. See, e.g., Matthew McFeeley, State Hydraulic Fracturing Disclosure Rules and Enforcement: A Comparison, Natural Res. Def. Council (2012), available at http://www.nrdc.org/energy/files/Fracking-Disclosure-IB.pdf (describing state regulations and recommending changes).
323. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
324. See Risa L. Lieberwitz, Faculty in the Corporate University: Professional Identity, Law and Collective Action, 16 Cornell J.L. & Pub. Pol'y 263, 270 (2007).
325. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
326. See, e.g., Randy E. Barnett, Foreword: Judicial Conservatism v. A Principled Judicial Activism, 10 Harv. J.L. & Pub. Pol'y 273, 283 n.32 (1987) ("Because theoretical legal scholarship is so greatly rewarded today among the faculties of the 'elite' law schools, young academics at these institutions may not have adequate incentive to commit themselves to the life-long tedium of treatise writing and the constant updating that doctrinal legal scholarship requires.").
327. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
328. See Kristin Madison, Building a Better Laboratory: The Federal Role in Promoting Health System Experimentation, 41 Pepp. L. Rev. 765, 767 (2014) (describing waivers in the Affordable Care Act that allow states to "adopt alternative means of ensuring coverage for their residents" (citing Patient Protection and Affordable Care Act § 1332, 42 U.S.C. § 18052 (2012)).
329. Cf. David B. Spence, The Shadow of the Rational Polluter: Rethinking the Role of Rational Actor Models in Environmental Law, 89 Calif. L. Rev. 917, 932-33 (2001) (noting that "environmental regulations are difficult to understand" and that "[e]ven if the firm understands the words, it must ensure that its understanding of the meaning of those words is similar to the agency's understanding, lest it risk liability based on its mistaken understanding").
330. Press Release, Susquehanna River Basin Comm'n, SRBC Orders Natural Gas Driller to Stop All Water-Related Work at Drilling Site in Cameron County, PA (Nov. 10, 2010), available at http://www.srbc.net/pubinfo/press/docs/Project%20Review%20Natural %20Gas%20JW%20Op%20Cease%20Order%20_11_10_2010_.pdf.
331. See Tex. Comm'n on Envtl. Quality, Common Environmental Requirements for Regulated Oil and Gas Operations 3 (2013), available at http://www .tceq.state.tx.us/publications/rg/rg-482.html/at_download/file (describing the surface water withdrawal permit required).
332. See, e.g., David B. Spence, Federalism, Regulatory Lags, and the Political Economy of Energy Production, 161 U. Pa. L. Rev. 431, 447 (2013) ("[T]he regulation of oil and natural gas exploration and production in the United States has always been primarily a state matter.").
333. DSIRE: Database of State Incentives for Renewables & Efficiency, http://www.dsireusa.org (last visited July 5, 2014) (collecting information on state incentives and policies, through funding by the U.S. Department of Energy).
334. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 Emory L.J. 1333, 1351-1355 (2009) (questioning the "assumption that jurisdictions can easily obtain information about the experiments of others" and arguing that state officials might have an incentive to conceal information despite technological advances facilitating the sharing of policies).
335. Paul S. Weiland, Federal and State Preemption of Environmental Law: A Critical Analysis, 24 Harv. Envtl. L. Rev. 237, 276 (2000) (noting a variety of challenges associated with regulatory "patchworks").
336. Colo. Code Regs. § 404-1:904(b)(1) (West 2014).
337. 225 ILCS 731/1-75 (Jan. 3, 2014), available at http://www.dnr.illinois.gov/OilandGas/ Documents/ProposedHydraulicFracturing62-245.pdf.
338. La. Admin. Code tit. 43:XIX, § 307 (2013).
339. 25 Pa. Code § 78.56 (2001).
340. 16 Tex. Admin. Code § 3.8 (2014).
341. State Rev. of Oil & Nat. Gas Envtl. Regs., 2013 Stronger Guidelines 5.5.3(e), available at (2013), http://www.strongerinc.org/sites/all/themes/stronger02/down loads/2013%20Guidelines%20with%20HF%20revisions%20approved%205-13-2013.pdf.
342. See Richard Cauchi, State Actions to Address Health Insurance Exchanges, Nat'l Conference of State Legislatures (May 9, 2014), http://www.ncsl.org/research/health/ state-actions-to-implement-the-health-benefit.aspx (summarizing, in map form, the type of exchange each state has chosen to run).
343. See Oil & Gas Operator's Manual, Penn. Dep't of Envtl. Prot., http://www. elibrary.dep.state.pa.us/dsweb/View/Collection-8295 (last visited June 28, 2014).
344. Commonwealth of Kentucky, Oil and Gas Well Operator's Manual, http://oilandgas.ky .gov/Documents/Oil%20and%20Gas%20Operators%20Manual.pdf. A number of other states have compilations of regulations compiled in "rule books" or "goldbooks."
345. See, e.g., Ark. Oil & Gas Comm'n, General Rules and Regulations (2014), available at http:// www.aogc.state.ar.us/onlinedata/forms/rules%20and%20regulations.pdf.
346. State Oil & Gas Bd. of Ala., State Oil & Gas Board of Alabama Administrative Code (2014), available at http://www.gsa.state.al.us/documents/misc_ogb/goldbook.pdf.
347. See, e.g., Oil & Gas Filing Checklist from Prospect to Production, R.R. Comm'n of Tex., http://www.rrc.state.tx.us/oil-gas/forms/oil-gas-filing-checklist-from-prospect-toproduction (last visited July 30, 2014).
348. Oil & Gas Conservation Division Forms, Kan. Corp. Comm'n, http://www.kcc.state.ks.us/conservation/forms (last visited Oct. 21, 2014).
349. See, e.g., Connecticut, Incentives/Policies for Renewables & Efficiency, Database of State Incentives for Renewables & Efficiency, http://www.dsireusa.org/incentives/in centive.cfm?Incentive_Code=CT04R (last updated July 19, 2013) (presenting such information in partnership with North Carolina State University).
350. David L. Markell, The Role of Deterrence-Based Enforcement in a "Reinvented" State/Federal Relationship: The Divide Between Theory and Reality, 24 Harv. Envtl. L. Rev. 1, 26 (2000).
351. U.S. Envtl. Prot. Agency, Protecting Your Health & The Environment through Innovative Approaches to Compliance: Highlights from the Past 5 Years, at 10 (1999).
352. Hannah Wiseman, Untested Waters: The Rise of Hydraulic Fracturing in Oil and Gas Production and the Need to Revisit Regulation, 20 Fordham Envtl. L. Rev. 115, 127-40 (2009) (describing an earlier Ground Water Protection Council survey, suggesting caution in drawing broad conclusions from the survey's results, and noting that the Council had formally opposed federal regulation of fracturing).
353. Several portals use this method as well. See, e.g., A Review of Shale Gas Regulations by State, Res. for the Future, http://www.rff.org/centers/energy_economics_and_policy/ Pages/Shale_Maps.aspx#maps (last visited Sept. 28, 2014).
354. 3rd-Party Solar PV Power Purchase Agreements, Database of State Incentives of Renewables & Efficiency, available at http://www.dsireusa.org/documents/summarymaps/3rd_Party_PPA_map.pdf.
355. For DSIRE summary maps in other policy categories, see Summary Maps, Database of State Incentives for Renewables & Efficiency, http://www.dsireusa.org/summary maps (last visited June 28, 2014).
356. The NCSL uses a similar map to compare states that 1) have developed and run their own health exchange, 2) have used a "State/Federal Partnership," 3) use a state-run exchange for businesses and federal marketplace for individuals, or 4) use a federal exchange. Rather than placing text within each state, it shows these initial policy differences by color: it treats full, state-run exchanges as green, for example. See Richard Cauchi, State Actions to Address Health Insurance Exchanges, Nat'l Conference of State Legislatures (May 9, 2014), http://www.ncsl.org/research/health/state-actions-toimplement- the-health-benefit.aspx#Snapshot Table (scroll to "New 50-State Table of State and Federal Actions to Implement Exchanges or Marketplaces"). Hovering over a state provides slightly more detail about the exchange approach within the state, and clicking on a state leads the reader to a more detailed table with links to the rules described in the table.
357. The flaws in the healthcare website appear to have been largely technological ones, suggesting that the federal government-unlike relatively innovative and nimble private technology companies that specialize in the area-might not be the best entity either to create a website or even to select contractors to build a website. But the government can still meaningfully contribute experience in terms of identifying the information that should be on a website and how it should be organized.
358. Cf. Mark Seidenfeld, Empowering Stakeholders: Limits on Collaboration as the Basis for Flexible Regulation, 41 Wm. & Mary L. Rev. 411, 435-36, (2000) (describing the role of stakeholders in the administrative state under both the interest group and collaborative models).
359. See, e.g., Who We Are, Envtl. Info. Exch. Network, http://www.exchangenetwork .net/about/who-we-are (explaining that the Environmental Information Exchange Network-a partnership among "States, Tribes, Territories, and EPA"-involves the automated sharing of environmental data rather than manual inputting of policy data, but it provides models for making "data structures" uniform and providing for the sharing of data by approved entities over the internet).
360. Risk-Based Data Management System, Ground Water Protection Council, http://www.gwpc.org/programs/risk-based-datamanagement- system (last visited June 28, 2014) (describing a database into which state officials input information about oil and gas well sites, inspections, and enforcement at sites).
361. See, e.g., 43 U.S.C. § 1345 (2012) (requiring the Secretary of the Interior to accept recommendations of a state governor regarding the "size, timing, or location of a proposed lease sale" if these recommendations "provide for a reasonable balance between the national interest and the well-being of the citizens of the affected State").
362. Community Assistance Program - State Support Services Element, Fed. Emergency Mgmt. Agency, http://www.fema.gov/floodplain-management/community-assistanceprogram- state-support-services-element (last updated July 24, 2014).
363. U.S. Dep't of Homeland Sec., Nat'l Flood Ins. Program Info. Tech. Sys. 2 (2012), https://www.dhs.gov/sites/default/files/publications/privacy/privacy_pia_fema_nfi pits_10122012.pdf.
364. Community Assistance Program - State Support Services Element, Fed. Emergency Mgmt. Agency, http://www.fema.gov/floodplain-management/community-assistanceprogram- state-support-services-element (last updated July 24, 2014).
365. 42 U.S.C. § 7410 (2012) (requiring states to submit to the EPA Administrator "after the promulgation of a national primary ambient air quality standard … for any air pollutant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region" and that the plan must "include enforceable emission limitations").
366. See, e.g., Overview of Final Amendments to Air Regulations for the Oil and Natural Gas Industry: Fact Sheet, Envtl. Prot. Agency, http://www.epa.gov/airquality/oilandgas/ pdfs/20120417fs.pdf (last visited June 28, 2014) (describing new rules on air emissions from hydraulically fractured wells).
367. Unconventional Extraction in the Oil and Gas Industry, Envtl. Prot. Agency, http://water.epa.gov/scitech/wastetech/guide/oilandgas/unconv.cfm (last visited June 28, 2014) (describing new wastewater treatment standards that the agency is developing).
368. See, e.g., Jeffrey Logan et al., Evaluating a Proposed 20% Nat'l Renewable Portfolio Standard, Nat'l Renewable Energy Lab. http://www.nrel .gov/docs/fy09osti/45161.pdf (last visited June 28, 2014) (exploring the types of renewable energy that would be installed to meet a 20% national renewable energy standard, impacts on prices, and other impacts).
369. Envtl. Prot. Agency, Study of the Potential Impacts of Hydraulic Fracturing on Drinking Water Sources: Progress Report (2012), http://www2.epa.gov/sites/production/files/documents/hf-report20121214.pdf (describing the agency's study of the water quality and quantity impacts of hydraulic fracturing- although not stating that it will regulate in the area, which is one that currently operates under several substantial federal regulatory and statutory exemptions).
370. Cf. Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev. 698, 702-03 (2011) (noting the possibility that federal agencies' priorities will be skewed "due to capture, bureaucratic pathologies, political influence, or resource limitations").
371. See Nell Green Nylen, To Achieve Biodiversity Goals, the New Forest Service Planning Rule Needs Effective Mandates for Best Available Science and Adaptive Management, 38 Ecology L.Q. 241, 282 (2011) (describing "limited budgets" and "tight time constraints" of federal agencies).
372. David J. Sousa & Christopher McGrory Klyza, New Directions in Environmental Policy Making: An Emerging Collaborative Regime or Reinventing Interest Group Liberalism?, 47 Nat. Resources J. 377, 385 (2007) (noting "limited budgets and staffing" of federal agencies).
373. Mark Squillace & Alexander Hood, NEPA, Climate Change, and Public Lands Decision Making, 42 Envtl. L. 469, 472 (2012) (describing increasing "resource constraints" of federal agencies).
374. Regulatory Determination for Oil and Gas and Geothermal Exploration, Development and Production Wastes, 53 Fed. Reg. 25,446, 25,446 (July 6, 1988).
375. See generally Amy L. Stein, The Tipping Point of Federalism, 45 Ct. L. Rev. 217 (2012) (describing the disparities between state control over the siting of electricity generation and federal control in other siting regimes and further concluding that federal agencies are significantly advancing national interests in the other siting of electricity generation).
376. See Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. Rev. 1097, 1139-41 (2009) (describing shifting allocations of authority between federal and state actors).
377. See, e.g., U.S. Gov't Accountability Office, K-12 Educ.: States' Test Sec. Policies and Procedures Varied 2 (2013), http://www.gao.gov/assets/660/654721.pdf (examining "the extent to which states' policies and procedures include leading practices to prevent testing irregularities," and conducting a 50-state survey).
378. See, e.g., DSIRE, Renewable Portfolio Standard Policies (2013), available at http://www.dsireusa.org/documents/summarymaps/RPS_map.pdf (mapping states' requirements for the percentage of electricity that must come from renewable energy sources).
379. See, e.g., David Markell, "Slack" in the Administrative State and its Implications for Governance: The Issue of Accountability, 84 Or. L. Rev. 1, 27 (2005) (noting "[t]he statefederal relationship has not been particularly smooth" in the context of the EPA measuring state performance).
380. David L. Markell, The Role of Deterrence-Based Enforcement in a "Reinvented" State/Federal Relationship: The Divide Between Theory and Reality, 24 Harv. Envtl. L. Rev. 1, 26 (2000).
381. Oil and gas wastes were originally covered by the hazardous waste portion of the Resource Conservation and Recovery Act, for example-a federal Act that requires careful handling, storage, transportation, and disposal of hazardous wastes. Congress directed the EPA to consider excluding oil and gas wastes from this portion of the Act after lobbying by industry, and the EPA ultimately chose to exclude them, but it could of course change its mind. See Hannah Wiseman, Regulatory Adaptation in Fractured Appalachia, 21 Vill. Envtl. L.J. 229, 244-45 (2010) (describing the exemption).
382. See, e.g., 33 U.S.C. § 1318 (2012) (giving the EPA the authority to require owners or operators of any "point source" of water pollution-a source that conveys, pipes, or otherwise channels pollutants into waters of the United States-to, "establish and maintain such records," "make such reports," install "monitoring equipment or methods," sample effluents, and "provide such other information as [the EPA Administrator] may reasonably require" (emphasis added)).
383. See Envtl. Law Inst., Opportunities for Advancing Environmental Justice: An Analysis of U.S. EPA Statutory Authorities, 39-45 (2001) (surveying statutory authorities for EPA information gathering).
384. At the time Resources for the Future (RFF) began working on this project, I was collecting state regulations as part of a separate University of Texas project, and I had a conference call with RFF to explore the two projects and avoid duplication. For a discussion of the University of Texas project, including a conflict of interest that later emerged with respect to the professor who led that project, see Hannah J. Wiseman, Risk and Response in Fracturing Policy, 84 U. Colo. L. Rev. 729 (2013). I later joined RFF's effort to collect and compare regulations.