Hills on Hydrofracking and Home Rule

Rick Hills (NYU) has posted Hydrofracking and Home Rule: Defending and Defining an Anti-Preemption Canon of Statutory Construction in New York (Albany Law Review) on SSRN.  Here's the abstract:

Extracting natural gas through hydraulic fracturing of shale provokes bitterly divisive reactions from New Yorkers. 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. This article argues that Article IX, section 3(c) of the New York Constitution, requiring that the home rule powers of municipalities be “liberally construed,” requires courts to observe a presumption against preemption. Where a state statute is ambiguous about the scope of local laws that it preempts, then the statute should be presumed to preserve local laws from preemption. Such a presumption, however, is not irrebuttable. Under the presumption defended here, 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. Local prohibitions of hydraulic fracturing provide an illustration of how these general “home rule” principles can be used to resolve a real dispute, because such prohibitions impose neither an external cost on non-residents’ interests in extracting gas nor an “internal” cost on local residents’ property rights. Local political processes and fiscal instruments like property taxes and impact fees take into account the value of natural gas to non-resident purchasers, while resident landowners’ expectations in extraction of their gas are matched by equally settled expectations of their neighbors in quiet enjoyment of their land.