LOCAL HYDROFRACKING BANS 677
Greater control for local municipalities is especially
important with regard to zoning. A municipality’s zoning power
is its most effective weapon to protect their community. As
Judge Cardozo commented, “a zoning resolution in many of its
features is distinctively a city affair, a concern of the locality,
affecting as it does the density of population, the growth of city
life, and the court of city values.”^357 Due to the unique
importance of zoning, it is proper for the Court of Appeals to
adopt such a bright line rule that forces the legislature to
explicitly state if they intend to remove a municipality’s zoning
power.
In addition, a requirement of express intent for preemption
would help the judiciary and the legislature. The judiciary will
no longer have to struggle to discern unclear legislature intent.
Instead, courts could look at the legislation itself for an explicit
statement to determine if the state reserved zoning power for
itself, otherwise local municipalities would retain that authority.
Government, both on the state and the local level, would also
benefit. State legislatures going forward would have to truly
contemplate if the laws they are enacting would be better served
through local involvement or through laws controlling zoning
power. This would create an environment conducive to better
lawmaking. Local governments would also be spared the threat
of constant litigation based on the intended thoughts of the
legislature.
The legality of hydrofracking bans will likely remain
precarious until the Court of Appeals clarifies the limits of
implied preemption. In the interim, local municipalities will
continue to use their zoning power to decide for themselves
whether the risks of hydrofracking outweigh its rewards.
(^357) See SALKIN, supra note 177, § 2:01 n.3 (citing Adler v. Deegan, 167
N.E. 705 (N.Y. 1929)).