664 JOURNAL OF LAW AND POLICY
the OGSML was to regulate the industry and not to preempt
local land use authority.^269 The court relied heavily on Frew Run
and Gernatt but utilized a more in-depth historical analysis than
in Anschutz, to ascertain legislative intent.^270 The court, looking
at previous state statutes and legislative memoranda,^271 found that
the legislative intent was to minimize waste.^272 Additionally,
amendments in 1978 replaced the phrase “foster, encourage and
promote” regarding the state role in gas production with the
word “regulate.”^273 The court found that this did not show clear
legislative intent for state law to supersede local zoning
control.^274
Anschutz and Cooperstown Holstein were recently upheld by
the Appellate Division, but attorneys for the hydrofracking
industry have indicated that they intend to appeal.^275 While the
Court of Appeals only grants leave to a fraction of the cases that
request it,^276 there is a strong chance that the court will grant
such leave here since it is a matter of first impression that has
repercussions across the state. If the decisions are upheld by the
Court of Appeals, towns will be able to ban hydrofracking
through their zoning powers limiting where hydrofracking will
occur in New York State. Moreover, these cases also provide
the Court of Appeals an opportunity to clarify their own opaque
jurisprudence on implied preemption and its appropriate
application with regard to zoning.
(^269) Cooperstown Holstein Corp. v. Town of Middlefield, 943 N.Y.S.2d
722, 730 (Sup. Ct. 2012).
(^270) See SALKIN, supra note 177, § 11:23.50.
(^271) Cooperstown Holstein, 943 N.Y.S.2d at 723–29 (examining Article
3-A of the Conservation Law, amendments in 1978, amendments in 1981,
and the Legislative Memorandum).
(^272) Id. at 728–29.
(^273) Id. at 726.
(^274) See id. at 729.
(^275) Campbell, supra note 133.
(^276) Id.