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hydrofracking proponents in recent elections^343 and the presence
of prohydrofracking resolutions in over fifty towns.^344 Even if all
towns did enact hydrofracking bans, that would not alter the
preemption argument since the language in the OGSML speaks
to regulation of drilling where it occurs,^345 not the maximization
of gas drilling everywhere. The limited regulatory structure
created by the OGSML is not comprehensive enough to imply
that the legislature intended to occupy the field and preempt all
local zoning laws.
The Court of Appeals is not likely to find that towns’
hydrofracking bans are impliedly preempted due to their own
narrow interpretation of what constitutes implied preemption.
Court of Appeals jurisprudence appears to indicate that only an
explicit statement of legislative intent will preempt even the most
exacting of state regulations. While the OGSML does
specifically discuss control over the regulation of gas drilling,
there is no explicit statement indicating that the state intended to
reserve power over the placement of gas drilling locations.^346
Without such an explicit statement, the Court of Appeals is
unlikely to find local zoning concerns impliedly preempted.
CONCLUSION
The Court of Appeals’ narrow interpretation of implied
preemption is appropriate public policy for New York in general
and specifically with regard to hydrofracking. Although
hydrofracking has been conducted for many years in other
states, there are still a number of questions as to its effect on the
local environment, including tainted water and methane
explosions.^347 These environmental concerns are important as
they could affect the drinking water of local towns and New
(^343) Esch, supra note 116.
(^344) See Map of Positive Resolutions for Hydrofracking, supra note 120
(showing specifically that the towns in favor of hydrofracking are also along
the Marcellus Shale, the most lucrative area for hydrofracking).
(^345) ENVTL. CONSERV. § 23-0303(2).
(^346) See SALKIN, supra note 177, § 11:23.50.
(^347) See WILBER, supra note 53, at 89–92; Caruso, supra note 71.