631
IMPLIED PREEMPTION AND ITS EFFECT
ON LOCAL HYDROFRACKING BANS IN
NEW YORK
David Giller*INTRODUCTION
Depending on whom you ask, hydrofracking is either the
future of American energy or an ecological disaster waiting to
happen. Hydrofracking, otherwise known as “Fracking,”^1 is a
drilling process where underground rock formations are broken
apart to extract natural gas.^2 A number of environmental groups
have questioned the safety of hydrofracking, alleging that it can
damage the environment and that the resulting runoff wastewater
can harm drinking water.^3 Currently, there is a moratorium on
hydrofracking in New York State^4 until the Department of
- J.D. Candidate, Brooklyn Law School, 2014; B.A., State University of
New York at Geneseo, 2006. I would like to thank my friends and family for
their unwavering support and encouragement, especially my parents and my
sister for their insight and guidance. I also want to thank the entire staff of
the Journal of Law and Policy for their diligence and help throughout the
editing process as well as Professor Christopher Serkin for his invaluable
assistance.
(^1) See, e.g., Erica Levine Powers, Home Rule Meets State Regulation:
Reflection on High-Volume Hydraulic Fracturing for Natural Gas, A.B.A.
ST. & LOC. L. NEWS, Winter 2012, at 1, 1 (2012).
(^2) See Marcellus Shale, N.Y. STATE DEP’T OF ENVTL. CONSERVATION,
http://www.dec.ny.gov/energy/46288.html (last visited Mar. 19, 2013)
(providing overview of hydrofracking in New York State).
(^3) See, e.g., Ian Urbina, Regulation Lax as Gas Wells’ Tainted Water
Hits Rivers, N.Y. TIMES (Feb. 2, 2011), http://www.nytimes.com/
2011/02/27/us/27gas.html.
(^4) See N.Y. Exec. Order No. 41: Requiring Further Environmental
Review (Dec. 13, 2010), available at http://www.governor.ny.gov/archive/