Fractured communities: hydraulic fracturing and the law in New York state.

• Author: White, Michael L.
• Position: FOREWORD

The regulation of hydraulic fracturing has been debated on many fronts and that debate will now be heard before New York's highest court in the Dryden (1) and Middlefield (2) cases. The New York Court of Appeals will have to decide whether or not municipalities have the authority to ban hydraulic fracturing within their borders. The answer to this question will undoubtedly affect a multitude of stakeholders. Municipal legislators, homeowners, environmental advocates, and industry representatives will all be eagerly awaiting the answer to a question that has been looming in New York: Will hydraulic fracturing, specifically high-volume horizontal hydraulic fracturing, be permitted in the state? All aspects of hydraulic fracturing, from the process to the environmental impacts, have been fruitfully discussed and vigorously debated. Now the focus is on the small communities in New York's southern tier that sit above shale gas, and their power to regulate an activity of statewide importance. Some communities welcome hydraulic fracturing while others have passed local laws banning the activity completely. In an effort to discuss the potential impacts of permitting or banning hydraulic fracturing on New York's towns and landowners, the Albany Law Review sponsored a symposium entitled "Fractured Communities: Hydraulic Fracturing and the Law in New York State" in September 2013. This issue contains articles on topics that were presented, discussed, and debated at the symposium.

The first article is written by Roderick M. Hills, Jr., the William T. Comfort, III Professor of Law at New York University School of Law and author of the amicus brief filed in the Appellate Division, Third Department on behalf of ten law professors in the Dryden and Middlefield cases. (3) Professor Hills examines whether a presumption against state preemption is the law in New York by analyzing the home rule powers granted to municipalities in the New York Constitution. He suggests that the language in Article IX, section (3)(c) of the New York Constitution, requiring that home rule powers of municipalities be "liberally construed," creates a qualified presumption against state law preemption of local laws. Professor Hills also contends that the ambiguity of the preemption clause of the Oil, Gas, and Solution Mining Law should be read in favor of preserving local power. Lastly, Professor Hills suggests that although the presumption against preemption can be rebutted as...