Academic journal article Albany Law Review

Hydrofracking and Home Rule: Defending and Defining an Anti-Preemption Canon of Statutory Construction in New York

Academic journal article Albany Law Review

Hydrofracking and Home Rule: Defending and Defining an Anti-Preemption Canon of Statutory Construction in New York

Article excerpt

Extracting natural gas through hydraulic fracturing of shale provokes bitterly divisive reactions from New Yorkers. Some communities celebrate hydraulic fracturing as a source of clean and cheap energy, jobs, and tax revenue. Others fear its environmental risks of water pollution and despoliation of scenic beauty. While the state population is divided, local constituencies are frequently much more united. (1) Some towns have welcomed hydraulic fracturing into their territory, (2) while other towns have used zoning law to ban it altogether. (3)

With such a division of opinion, the regulation of hydraulic fracturing provides an ideal case study of whether municipal home rule can mitigate the costs of deep political disagreement by letting each community go its own way. A single statewide policy might bog down in acrimonious gridlock, but municipal legislators can more easily enact local solutions because their constituents share more consensus on the issue than the citizens of the state as a whole. The benefit of allowing policy disputes to be resolved at the level where there is the highest level of consensus suggests a policy of narrowly construing state statutory preemption whenever state law is ambiguous. As a matter of policy, therefore, one might urge state courts to resolve doubts about state law against preemption and in favor of local power, because preemption defeats municipal efforts to agree to disagree.

But is such a presumption against preemption more than merely a good policy idea: Is it also the law of New York? Even if it is law, is a presumption against preemption specific enough to resolve any real legal disputes?

This article answers both of these questions affirmatively. Article IX, section 3(c) of the New York Constitution requires that the home rule powers of municipalities be "liberally construed." (4) Such liberal construction, this article suggests, requires a qualified presumption against preemption: Unless statutory text manifestly and unambiguously supersedes local law, courts should presume that state law does not preempt local laws. This presumption is not irrebuttable: it can be overcome where local laws encroach on some substantial state interest that local residents are likely to ignore.

The controversy over hydraulic fracturing provides a good example of a dispute that this presumption can help resolve. The state legislature has never given any serious thought to whether and what extent local governments should be permitted to zone out hydraulic fracturing operations. Given this inattention, which is reflected in the murky language of the preemption clause of the Oil, Gas, and Solution Mining Law (OGSML), (5) state law should be deemed to be ambiguous on the question of preemption, and state courts should construe this ambiguity to preserve local power. By so limiting preemption, state courts preserve democratic accountability, ensuring that the local level of government has legal

powers to address an issue when the state legislature is paralyzed by its greater level of disagreement.

The presumption against preemption defended here can be rebutted: Even ambiguous state laws can preempt local laws where the latter impose external costs on non-residents or disrupt the settled and investment-backed expectations of the local government's own residents. (6) Local prohibitions of hydraulic fracturing, however, impose neither the external nor the internal cost. (7) As applied to hydraulic fracturing, the presumption against preemption actually prevents the disruption of the expectations of local property owners who purchased their homes with the expectation that their value would be protected by local zoning laws. (8) By leaving in place such zoning until it is displaced by some plain state legislative intent to preempt, the presumption against preemption prevents a regulatory vacuum that unconsidered preemption would otherwise inflict at the state level. …

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