Academic journal article Texas Law Review. Political philosophers, welfare economists, and positive political theorists have long puzzled over a problem that the law is frequently called upon to resolve: namely, how to choose the "best" policy when a majority mildly prefers policy X, and a minority strongly prefers policy not X. Federal preemption doctrine establishes a conceptually straightforward way of addressing this issue, but doctrinal rules governing state law preemption of local zoning decisions are murkier.
In addition, when local zoning rules restrict development, those rules can also trigger regulatory takings claims, further complicating the resolution of these state-local disputes. According to the environmental group Food and Water Watch, within the last few years more than local governments, from California to Texas to New York, have enacted ordinances restricting or banning within their borders the use of hydraulic fracturing fracking to produce natural gas or oil from shale formations;2 indeed, there are more than of these ordinances in New York State alone.
In what seems likely to be only the tip of the litigation iceberg, state courts have recently begun to decide state-local preemption challenges to anti-fracking ordinances rendering only a few opinions to date and are facing the first few takings claims none of which have yet been decided. This Article explores the distribution of those costs and benefits, how distributional concerns drive the politics that cause these conflicts in the first place, and how the decision rules courts use to resolve preemption and takings claims try to address those distributional concerns.
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