From Horace, Epod. 2d.

Utilizing Home Rule: The Case for Restricting Hydraulic Fracturing at the Local Level

“…179 In both cases, the plaintiffs (hydrofracking operators) claimed that a state law, New York's Environmental Conservation Law ("ECL"), preempted a municipality from enacting this type of ordinance. 180 In both cases, the court held in favor of the municipality, finding that New York state law did not preempt the municipality in enacting zoning ordinances that banned hydrofracking. 181 The Dryden court found a distinction between "ordinances that regulate property uses and ordinances that regulate mining activities."…”

“…180 In both cases, the court held in favor of the municipality, finding that New York state law did not preempt the municipality in enacting zoning ordinances that banned hydrofracking. 181 The Dryden court found a distinction between "ordinances that regulate property uses and ordinances that regulate mining activities." 182 Essentially, the municipality is preempted from regulating the "how" of hydrofracking, but not the "where."…”

“…181 The Dryden court found a distinction between "ordinances that regulate property uses and ordinances that regulate mining activities." 182 Essentially, the municipality is preempted from regulating the "how" of hydrofracking, but not the "where." 183 The court also noted, that incidental effects of zoning ordinances and land use laws upon the extractive mining industry does not make the ordinance preempted by state law.…”

“…183 The court also noted, that incidental effects of zoning ordinances and land use laws upon the extractive mining industry does not make the ordinance preempted by state law. 184 Similarly, the Middlefield court held that "preemption does not apply to local regulations addressing land use which may, at most, 'incidentally' impact upon the 'activities' of the industry of oil, gas and solution drilling or mining." 185 Notably, the Dryden court recognized the public interest in insulating individuals from the risks posed by hydrofracking by quoting the court in Matter of Gernatt, which stated that:…”