An ATS-style ban or overarching regulatory regime is not suitable for the Arctic for two reasons. First, a regime banning Arctic oil and gas production will not materialize because it is not in the interests of the would-be signatories. Whereas the drafters of the ATS were interested in preserving the continent as a scientific sanctuary,³⁷ the Arctic states are already heavily invested in Arctic oil and gas development, not preservation of the region as a scientific sanctuary. For states to disregard those investments in exchange for a ban on development at this point is not feasible.

Second, the five Arctic states likely to have jurisdiction over Arctic waters—Canada, Denmark, Norway, the United States, and Russia— have already declared in unison that no new regulatory scheme is needed.³⁸ Furthermore, building consensus is difficult. For example, the United States’ experience with state regulation of hydraulic fracturing disclosure demonstrates this point. In the United States, public outcry about the contents of hydraulic fracturing fluids has failed to induce a comprehensive national policy response, but instead has led to a flurry of state regulations in recent years.³⁹ States responded quickly to the call for regulation in divergent ways based on what local lawmakers saw as the best way to approach the situation. For example, while New York instituted a moratorium on the use of fracturing in the Syracuse watershed,⁴⁰ Colorado adopted regulations requiring disclosure of chemicals used in the process with an exception for trade secrets.41 Building consensus regarding a comprehensive regulatory regime between states within a single country is difficult enough, and building such a consensus between countries with no overarching sovereign body may be even more difficult.