High Volume Hydraulic Fracturing and Home Rule: The Struggle for Control

By Nearpass, Gregory R.; Brenner, Robert J. | Albany Law Review, Fall 2012 | Go to article overview

High Volume Hydraulic Fracturing and Home Rule: The Struggle for Control


Nearpass, Gregory R., Brenner, Robert J., Albany Law Review


I. INTRODUCTION

At the core of American jurisprudence is its system of checks and balances. Each of the three branches of government--executive, legislative, and judicial--is specifically designed to provide oversight and review of each other; the goal to reign in and prevent abuses of power or instances where one branch exerts powers it does not have. Moreover, there is no hierarchy of power between the branches; their powers, functions, and limitations being derived by the Constitution itself.

In addition to this system of checks and balances within government, there is also a system of checks and balances among the different layers of government--federal, state, and local. The difference here is that there is a hierarchal structure of power between these layers. Unquestionably, the federal government sits atop the power structure, and provides a unifying force of law and policy throughout the country. The federal government also provides powers to the states, colloquially referred to as the "police powers." (1) Likewise, state governments have control and authority over local municipalities, and local governments get their powers from the states, such powers being referred to as "home rule" powers. (2) In other words, the powers, functions, and limitations of each layer of government are derived from the preceding layer.

Just because a layer of government has exerted power in a particular area, does not automatically preclude another layer from regulating. There are many instances where the different layers of government are able to concurrently regulate a particular area. However, there are instances where the federal or state government has either (i) reserved complete and exclusive control, or (ii) specifically limited the powers of a lower layer of government. This is done through the doctrine of preemption (3) and supersession. (4)

Notwithstanding this system, which has been in place for over two hundred years, (5) there is still a struggle for control among the branches of government, as well as among the layers of government. Where the system tends to break down is with an emerging area of law. In these instances, a struggle for control occurs. There can be an executive order, proposed legislation, and judicial review occurring simultaneously. Plus, there can be attempts by multiple layers of government to exert control.

There is no better current example than with high volume hydraulic fracturing ("HVHF"), an emerging technology and area of law in the Northeast. For the most part, the struggle for control over HVHF is taking place between state and local governments, (6) and this article primarily focuses on the struggle between New York State and its local governments. As municipalities are enacting local laws and moratoria banning HVHF within their borders, the question remains: do municipalities have this power?

As explained in more detail below, two recent court cases, Anschutz Exploration Corporation v. Town of Dryden ("Dryden"), (7) and Cooperstown Holstein Corporation v. Town of Middlefield ("Middlefield"), (8) have upheld local laws prohibiting HVHF. (9) These laws were upheld, despite the fact that New York State law has very broad preemption powers over the oil and gas industry, and prior attempts by municipalities to regulate the oil and gas industry have been struck down as preempted by state law. (10)

Even more recently, on October 2, 2012, another case dealing with home rule powers and HVHF was decided. In Jeffrey v. Ryan ("Binghamton"), (11) the court overturned a local law prohibiting HVHF, determining that the local law was an improper moratorium. (12) In so doing, the court casted doubt upon and questioned the legality of all moratoria prohibiting HVHF. (13)

Both Dryden and Middlefield have been appealed to the Appellate Division, Third Department, (14) and a decision to appeal has not been made yet regarding Binghamton. …

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