Low-Energy Fridays: Can the president ban fracking? Well yes, but actually no.

Like fictional gubernatorial candidate Peter Russo from House of Cards, presidential nominee Kamala Harris is getting nailed on a flip-flop about fracking. The issue is significant because fracking accounts for most oil and gas production in the United States, and much of it occurs in the electorally important state of Pennsylvania. Yet during the 2020 election, Harris unequivocally stated “There’s no question I’m in favor of banning fracking.” In her recent interview with CNN, however, she said “… as president, I will not ban fracking.” This begs the question: Can a president ban fracking? As is often the case, the answer is more complicated than it should be.

Basic civics tells us that the president does not have the authority to ban fracking. This is because the president only has the authority granted to them by the Constitution or ceded to them by Congress for the execution of law. Since Congress hasn’t given them the authority to ban fracking, it would seem the president cannot do this. Case closed, right? Not so fast.

What Congress has ceded to the president is the authority to regulate practices related to energy production in order to comply with environmental law. This means a president could de facto ban fracking by imposing a regulation that prohibits the activities required for fracking. In 2015, the Obama administration issued a regulation that would have imposed new construction standards and disclosure requirements on fracked wells on public land. Since this would have only affected a minority of fracked wells (as most fracking occurs on private land), it wouldn’t have risen to the level of a ban—but it was a significant regulation nonetheless. In theory, the president can impose a stringent enough environmental regulation to render a practice no longer cost-effective, thereby acting as a ban. One such example is how the Clean Power Plan—a regulation under the Clean Air Act—would have set emission requirements that are unachievable by coal power plants, effectively forcing their phaseout.

OK, so the president can ban fracking. Are we done here? Again, not the whole story.

The Obama administration’s fracking regulation relied on a generous interpretation of their regulatory authority, and the rule was struck down by the courts. The aforementioned Clean Power Plan suffered a similar fate, though with a bit more back-and-forth. Regulations don’t have a good record of surviving litigation—and if regulations under the Clean Air Act keep getting struck down in court, it’s hard to imagine that a fracking ban meant to comply with a yet-undiscovered statute will have much of a chance. So we’re back to square one again: The president doesn’t have the authority to ban fracking.

Now here comes the “but.” The president can still make life difficult for energy producers if they so choose. They can slow-walk permitting decisions, try to claw back permitting authority granted to states for wells, restrict leasing, or impose any number of other policies to build a wall of red tape. The regulatory agenda under President Joe Biden has demonstrated that if there’s a will to regulate, regulators will find a way.

So, the president’s positions do matter. It’s also important to understand that the body of research on the public health effects of fracking are growing and that regulations based on credible research are much more likely to survive in court—provided they only impose the costs necessary to capture a quantifiable public health benefit. For example, a regulation mandating a chemical substitution is more likely to be sustained after litigation than one that bans fracking to capture the same benefit at a higher cost.

At the end of the day, a focus on overly simplistic language that fails to hold candidates to any policy position does our political discourse a disservice. Of course Harris would not unilaterally implement a fracking ban as president because she wouldn’t have the authority to do so. But the line of questioning in her CNN interview didn’t require her to reveal any policy position on the matter. Ultimately, the act of campaigning doesn’t lend itself to policy nuance, leaving a wide chasm between what politicians say and what they do. From a policy perspective, all we can do is look to policies under past administrations for insight.

Past statements indicate that candidate Harris would likely support heightened regulation for fracking. That would be short of an outright ban, and technically within the bounds of her promise should she become president. However, it’s impossible to know if and how she’d regulate fracking unless Harris herself clarifies her position.