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Adam J. Loos

Abstract

The increased use of hydraulic fracturing has led to concerns about possible environmental harm. Hydraulic fracturing, or fracking, is a resource extraction technique that aims to improve well productivity by pumping fracturing fluids containing a mixture of water, other chemicals, and sand, into an oil or gas well under high pressure. Public opposition to hydraulic fracturing has led to bans and proposed bans on the practice in many American cities and towns. The Town of Dryden, New York, enacted an amendment to its zoning ordinance prohibiting all oil and gas exploration and production within its boundaries. New York state law regulates the oil, gas, and solution mining industry, and the state statute contains a supersession clause that preempts local regulation of these industries. In Wallach v. Town of Dryden, the New York Court of Appeals held the zoning ordinance was a valid regulation of land use, rather than a regulation of the oil and gas industry, and that state law did not preempt the zoning ordinance.

This Note examines Wallach v. Town of Dryden in light of the risks and benefits of hydraulic fracturing and prior New York statutes and case law. It explains the hydraulic fracturing process and its history, and explains the approaches Colorado and Pennsylvania have taken to supersession. It also explains the New York statutes and case law relating to municipal authority to regulate land use, and the New York statute regulating the oil and gas industries. Finally, this Note argues the court correctly interpreted precedent in a way that maintains municipal authority to regulate land use while preserving the legislature’s authority to regulate industry, resulting in an appropriate balance of state and local authority that serves public policy. This Note concludes by urging Illinois courts to follow the example set in Wallach v. Town of Dryden when deciding cases challenging local ordinances prohibiting hydraulic fracturing.

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