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control over zoning to the state, there is no need to look for
implied preemption. This is different from the OGSML, which
only has specific language preempting regulation and does not
have any explicit language regarding zoning or the placement of
drilling sites.
Permitting New York towns to ban hydrofracking does go
further than other states but that is a positive development.
While West Virginia courts have struck down hydrofracking
bans, their reasoning focused on the “narrow” power held by
municipalities and West Virginia DEP’s primary authority to
protect the environment.^354 For the New York Court of Appeals
to analyze the OGSML in a similar manner would upend years
of jurisprudence that allowed local municipalities greater control
through zoning. It is also not clear in Pennsylvania what level of
control local municipalities will have over hydrofracking.^355 It is
possible that the Pennsylvania Supreme Court will take a similar
position to that of the New York Court of Appeals and adopt a
broad view of zoning power. Regardless, the environmental
issues that Pennsylvania has encountered in its quick embrace of
hydrofracking^356 are additional evidence that the best path
forward is greater local control.
The New York Court of Appeals should also take this
opportunity to clarify that implied preemption should only be
found with regard to zoning if there is an explicit statement of
intent from the legislature. Such a statement would simply
codify what is already effectively unstated law. This would have
a number of policy benefits for New York State. It would create
a clear bright line rule that would give local municipalities a
greater sense of what they are able to do and would decrease the
number of lawsuits challenging their authority.
http://www.bryancave.com/files/Publication/b03ff613-d188-440a-bd0b-
01f498b4e1bc/Presentation/PublicationAttachment/f8e28986-f958-4912-91e0-
119d5dccd6e0/New%20York%20Power%20Plant%20Siting%20Article%20X
%20Client%20Alert_v7%20(AP).pdf.
(^354) Orford, supra note 162.
(^355) Detrow, supra 157.
(^356) See Caruso, supra note 71; see also Drakem & Efstahiou Jr., supra
note 76.