Hydrofracking and "Home Rule" Principle as a Canon of Statutory Construction

The dispute over hydraulic fracturing ("hydrofracking" to its critics) in New York State will finally be resolved in a showdown before the Court of Appeals this June. The question in Norse Energy v. Town of Dryden is whether the preemption clause of the New York Oil, Gas, and Solution Mining law preempts the town's power to zone out hydraulic fracturing. In an effort to re-focus the dispute on the general idea of "home rule" as a way to side-step contentious political issues, I wrote an amicus brief on "home rule" principles as a way to resolve the case (Download NY Zoning Amicus Brief Electronic Copy 3-28-2014), and I managed to persuade a dozen of my fellow profs to sign on. (Susan Kraham, Columbia clinical prof, kindly agreed to be Counsel of Record, dealing with the paper chase of New York courts' primitive lack of an electronic filing system).

Both the brief and an article I wrote for Albany Law Review that was derived from the brief (Download Albany Law Review Draft) make the case in favor of mushy "home rule" principles over hyper-persnickety textualism in construing state statutes' preemption clauses. The "home rule" principles defended in the brief and article do not invariably favor local power: When a local law imposes substantial external costs on non-residents or internally imposes a burden on settled expectations of resident landowners, then these principles would construe even ambiguous preemption clauses in state statutes to preempt local law. (The analysis here runs parallel to Paul Diller's analysis in Intrastate Preemption, a terrific piece that I routinely assign in Local Government Law classes. (Paul was my former student at Michigan Law, by the way, which makes me feel both proud and over the hill).

The idea of using a "localism" canon of construction to resolve statutory ambiguities in state law bears an obvious analogy to "federalism" canons of construction that have inspired far more commentary. There are, however, some important differences between the state-local and federal-state contexts that, as I explain after the jump, give state courts more justifications than federal courts for relying on mushy, arguably policy-laden canons.

1. State Constitutional Text: Caleb Nelson might be right that the U.S. Constitution's Article VI contains a non obstante clause implicitly barring federal courts from straining to preserve state laws from federal preemption. The New York Constitution, however, contains exactly the opposite sort of canon: Article IX, section 3(c) provides that the "[r]ights, powers, privileges and immunities granted to local governments by [Article IX] shall be liberally construed." This "liberal construction" clause would seem to function as an anti-preemption clause: One cannot broadly construe the powers conferred by home rule provisions by the state constitution unless one narrowly construes the state statutory language purporting to preempt those powers. (Oddly, there is a paucity of case law construing the "liberal construction" clause, even though the clause appears in many state constitutions and was an important goal of the "home rule" movement across the nation).

2. State Legislative Capacity: Daniel Meltzer has defended the use of non-textual bases for resolving disputes about the scope of federal preemption by noting that Congress "lacks the capacity, foresight, and linguistic tools" to specify the complex rules necessary for dividing up jurisdiction between state and federal governments. What Meltzer said about Congress is far more true of state legislatures, which have smaller staffs, poorer and smaller interest groups, and a less aggressively watchful media. In particular, the New York legislature tends to draft and enact statutes defining local powers with minimal care or, at least, minimal deliberation manifested in any sort of legislative history. One will look in vain for any discussion whatsoever of local zoning powers in the "bill jacket" (i.e., documents accompanying the bill) for the preemption clause of the Oil, Gas, and Solution Mining Law. No one in the legislature apparently gave any thought to the question of whether the vague "relating to" language in the preemption clause might entitle drilling operators to set up a rig in quiet residential neighborhoods without regard to local zoning restrictions. Norse Energy, the petitioner before the Court of Appeals, is apparently taking the position that the preemption clause does indeed preempt every sort of local laws that "relat[es] to the regulation of the oil, gas and solution mining industries," suggesting not only that they can drill away in quiet, leafy suburban residential zones but also park their trucks on sidewalks and toss litter into the street while they are drilling (because, of course, local traffic laws and litter ordinances would also seem to be preempted by such a reading). Putting aside the merits of such an interpretation (which would seem to be vulnerable to a reductio ad absurdum riposte), it is remarkable that the state legislature would enact a statute capable of being so construed by reasonable people without at least mentioning somewhere in its deliberations that such a law would play havoc with local real estate values. Or, rather, this lacunae would be remarkable to someone not already familiar with the lackadaisical way in which the New York state legislature produces legislation. The justification for a bit more judicial "quality control," in the form of a bit more massaging of vague statutory terms using "substantive canons," is inversely proportional to the capacity of the legislative body for careful deliberation: If one believes that the New York state legislature's capacity is extremely low, then the state courts might reasonably pick up the slack.

3. The electoral mandate of the state courts: New York supreme court justices are elected to fourteenth-year terms by county voters, while Court of Appeals judges are appointed for fourteen-year terms by the governor. To this extent, state judges have an electoral connection considerably stronger than a federal judge serving during "good Behaviour." If one worries about judicial policy-making because of the absence of such a connection, then the case for a "localism" canon of construction is ceteris paribus stronger for state than for federal judges.

Despite these reasons for a more robust "localism" canon, New York courts have traditionally been exceptionally tight-lipped about general principles with which to resolve ambiguities in the preemptive scope of state laws. Most people invested in the hydraulic fracturing controversy are excited about the ecological costs or economic benefits of the mining technique. I confess my indecision about that particular policy dispute. But, decentralization nerd that I am, I am just as exorcised about the neglect of local governments' powers in New York jurisprudence, and I am hoping that the Court of Appeals mines New York's legal resources for some decent pro-home rule language.