LOCAL HYDROFRACKING BANS 633
outside of these delegated powers or “intrud[es] into an area of
state authority,” such action will be considered preempted by
state law either expressly or impliedly.^14 Express preemption
exists when the state, through specific language in legislation,
reserves power for itself, superseding local municipal control.^15
Implied preemption, on the other hand, occurs where legislation
does not explicitly give the state control over a local issue but
insinuates that such control was intended by legislature.^16 To find
implied preemption, courts often examine “the nature of the
subject matter regulated, the purpose and scope of the state
legislative scheme, and the need for statewide uniformity.”^17
This usually involves examining the legislature’s intent at the
time the law was created.^18 However, such inquiries are
problematic because courts are often reluctant to judge
legislative intent.^19
New York case law is unclear regarding the criteria
necessary for a finding of implied preemption. While the New
York Court of Appeals has indicated that implied preemption
can be inferred from state legislative policy or a comprehensive
bans-in-new-york.
(^14) Shaun Goho, Municipalities and Hydraulic Fracturing: Trends in State
Preemption, PLAN. & ENVTL. L., July 2012, at 3, 5 (2012); see also Michael
E. Kenneally & Todd M. Mathes, Natural Gas Production and Municipal
Home Rule in New York, N.Y. ZONING L. & PRAC. REP., Jan./Feb. 2010, at
1, 3 (2010).
(^15) See Goho, supra note 14, at 5; see also N.Y. COMM’N ON LOCAL
GOV’T EFFICIENCY & COMPETITIVENESS, STRENGTHENING HOME RULE
(2008), http://www.nyslocalgov.org/pdf/Strengthening_Home_Rule.pdf.
(^16) See Kenneally & Mathes, supra note 14; see also Paul Weiland,
Preemption of Local Efforts to Protect the Environment, 18 VA. ENVTL. L.J.
467, 470 (1999).
(^17) Kenneally & Mathes, supra note 14 (citing Albany Area Builders
Ass’n v. Town of Guilderland, 546 N.E.2d 920 (N.Y. 1989)).
(^18) See, e.g., Goho, supra note 14, at 5; Kenneally & Mathes, supra note
14, at 3; Weiland, supra note 16, at 470.
(^19) See Kenneally & Mathes, supra note 14, at 5 (“[S]uch curtailment
should only occur under a circumstance in which the legislature’s preemptive
intent is absolutely clear.”); see also Gernatt Asphalt Prods. v. Town of
Sardinia, 664 N.E.2d 1226, 1234–35 (N.Y. 1996).