Hydrofracking and home rule: defending and defining an anti-preemption canon of statutory construction in New York.

• Author: Hills, Roderick M., Jr.
• Position: Fractured Communities: Hydraulic Fracturing and the Law in New York State

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.

1. THE AMBIGUITY OF THE OIL, GAS, AND SOLUTION MINING LAW'S PREEMPTION CLAUSE

   Few legal concepts are more ambiguous than the concept of ambiguity itself. Given the likelihood that rival dictionary definitions and canons of construction will conflict with each other, whether a statute's preemption clause plainly applies to a local law will often be a perplexing question. Using the preemption clause of the OGSML as an illustration, this paper urges that a state statute is ambiguous about preemption when the state statute does not squarely confront and resolve a divisive issue that is the subject of the local law. The absence of such a plain legislative resolution can be an indication that the state legislature did not make up its collective mind because of disagreement among the legislature's constituents. In such a case, the judicial inference that state law preempts local laws puts words in the state legislature's collective mouth, attributing a level of consensus to the state legislature that it could not actually achieve. Aside from distorting the meaning of legislation, such judicially invented preemption also defeats one of the benefits of home rule, which is to allow local governments, enjoying greater consensus on divisive issues, to make policy when the state legislature is paralyzed by its internal divisions. (9)

   The preemption clause of the OGSML provides a good example of how statutory text fails to squarely confront the divisive issue of hydraulic fracturing. The clause, codified at ECL section 23-0303(2), provides that

   [t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law. (10) Does this language plainly preempt a local zoning law excluding hydraulic fracturing entirely from the jurisdiction of a local government? The question turns on whether such a law "relat[es] to the regulation of the oil, gas and solution mining industries." (11) Taking into consideration the usual sources of authority--text, precedent, canons of construction, and legislative history (12)--this language plainly suggests only that the legislature never gave any serious thought at all to the question of whether local governments can zone out hydraulic fracturing.

   Take, first, the prepositional phrase "relating to." As Justice Scalia has noted, pinning a specific meaning to this phrase through purely textual means is "a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else." (13)

   A broadly literalistic reading of ECL [section] 23-0303(2) could lead to the absurdity of exempting gas and oil drilling operations from every local law--general parking regulations, anti-littering rules, bans on late-night noise--that affect those operations, even if the purpose of such laws had nothing whatsoever to do with the extraction of natural resources as such. It is hard to believe that the state legislature intended to work such a revolution in local governmental powers through a fit of ambiguous phrasing like "relating to."

   Short of inferring an absurdly comprehensive immunity for "the oil, gas and solution mining industries" from all local "regulation," the clause is most naturally read as precluding only those local laws directed at the techniques for extracting oil, gas, and mining from the ground. Such a reading comports with the New York Court of Appeals interpretation of a closely related preemption clause in Frew Run Gravel Products, Inc. v. Town of Carroll. (14)

   Frew Run held that the supersedure clause of the New York Mined Land Reclamation Law, MLRL section 23-2703(2), which provided that "this article shall supersede all other state and local laws relating to the extractive mining industry," (15) did not preempt the Town of Carroll's ban on sand and gravel mining in AR2 zoning districts. In reasoning that the Town's zoning classification did not "relat[e] to the extractive mining industry," the Frew Run court noted that "reading] into ECL 23-2703(2) an intent to preempt a town zoning ordinance prohibiting a mining operation in a given zone ... would drastically curtail the town's power to adopt zoning regulations...." (16) To avoid such "drastic[] curtail[ment]" of towns' zoning powers, the Frew Run court adopted a presumption holding that any interpretation of the Mined Land Reclamation Law "should be avoided" if it would "preclude the town board from deciding whether a mining operation--like other uses covered by a zoning ordinance--should be permitted or prohibited in a particular zoning district." (17) In adopting this presumption that state regulation of mining does not oust local governments from simultaneously regulating land use, Frew Run is consistent with similar presumptions against preemption of zoning law adopted by other states. (18)

   Does Frew Run unequivocally indicate that the OGSML intended to preserve local power? Not necessarily: One could endeavor to limit the scope of Frew Run by noting that the particular preemption clause construed at issue in the case contained a specific proviso excluding from preemption "local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements than those found herein." (19) One might attempt to argue that the holding in Frew Run somehow depended on the existence of this savings clause. Since this proviso is not present in the analogous clause of the OGSML, one might argue that Frew Run is not relevant precedent for construing the OGSML.

   One can make respectable textual arguments against such a limit on Frew Run, which seems to run against the language of the precedent itself. Frew Run relied not on the zoning proviso but instead on the limits inherent in the phrase "relating to the extractive mining industry." (20) Moreover, the zoning...