LOCAL HYDROFRACKING BANS 635
Furthermore, because the incredibly high burden for finding
implied preemption cannot be met in the current cases involving
hydrofracking, the New York Court of Appeals^26 should uphold
the hydrofracking bans as a proper use of zoning power.
Additionally, the Court of Appeals should recognize the reality
of implied preemption and its intersection with local zoning
power. Namely, with regard to zoning, implied preemption
should only be found when there is an explicit indication of
legislative intent. A narrow approach to implied preemption with
regard to zoning power is a better policy for New York because
it eliminates the ambiguity of attempting to discern intent and
forces the state legislature to consider the appropriate role of
local zoning power.
Part I of this Note describes the process of hydrofracking
and the current controversy surrounding its use in both New
York and other states. Part II examines the history of zoning and
preemption in New York State with an analysis of previous New
York cases involving mining and hydrofracking. Part III focuses
on the narrow interpretation of what constitutes implied
preemption by the New York Court of Appeals and how such an
interpretation requires the Court of Appeals to uphold local
hydrofracking bans. Ultimately, a narrow view of implied
preemption with regard to zoning is the best policy to control
hydrofracking in New York State and to promote deliberation
and accountability in the state legislature.
(^26) At the time of publication, the Appellate Division has unanimously
upheld the hydrofracking bans. Norse Energy Corp. USA v. Town of
Dryden, No. 515227 (N.Y. App. Div. May 2, 2013). However,
hydrofracking ban opponents have indicated that they intend to seek leave to
appeal to the Court of Appeals. Adam Briggle, Cities in New York Just Got a
Big Stick in the Fracking Fight, SLATE (May 3, 2013),
http://www.slate.com/blogs/future_tense/2013/05/03/norse_energy_corp_v_to
wn_of_dryden_court_upholds_new_york_town_s_fracking.html.