Communities Can’t Block State-Approved Fracking

COLUMBUS, Ohio (CN) - Local zoning regulations cannot supersede state law when it comes to drilling for oil and natural gas, a divided Ohio Supreme Court ruled.

The state's highest court ruled 4-3 in favor of Beck Energy Corporation, dismissing the appeal of the City of Munroe Falls.

The decision upheld a judgment from the Summit County, Ohio Court of Appeals that said the home rule amendment of the Ohio Constitution does not allow the city to enforce its own permitting scheme on top of the system imposed by the state.

Beck Energy obtained a permit from the state to drill for oil in 2011, but the city of Munroe Falls was granted an injunction by a Summit trial court that blocked drilling until the company complied with all local ordinances.

In her opinion, Supreme Court Justice Judith L. French wrote that because the local statutes "prohibit - even criminalize - the act of drilling for oil and natural gas without a municipal permit ... the ordinances represent an exercise of police power rather than local self-government."

This type of policing power is explicitly mentioned in the home rule amendment as one that "must yield to a state statute," the opinion says.

Justice French rejected the city's argument that the state law governing oil and gas drilling lacks uniformity because only certain portions of the state have drillable quantities of the resources.

She wrote: "Whether or not every acre of Ohio constitutes viable drilling land, R.C. 1509.02 imposes the same obligations and grants the same privileges to anyone seeking to engage in oil and gas drilling and production operations within the state."

Munroe Falls argued that its licensing scheme did not conflict with that of the state, and claimed each regulates a separate portion of the drilling industry.

Specifically, the city claimed "the [local] ordinances address 'traditional concerns of zoning,' whereas R.C. 1509.02 relates to 'technical safety and correlative rights topics.'"

But Justice French was unmoved.

"This distinction is fanciful, and it ignores the plain text of the ordinances, as well as the statute. The ordinances and R.C. 1509.02 unambiguously regulate the same subject matter - oil and gas drilling - and they conflict in doing so," she wrote.

French concluded that "While R.C. 1509.02 preserves the extensive regulatory control given to municipalities over a wide range of infrastructure - from alleys to aqueducts - it explicitly prohibits them from exercising those powers in a way that 'discriminates against, unfairly impedes, or obstructs' the activities and operations covered by R.C. 1509.02."

Chief Justice Maureen O'Connor and Justice Sharon L. Kennedy concurred with Justice French, while Justice Terrence O'Donnell concurred in judgment only.

In his opinion, Justice O'Donnell wrote: "it remains to be decided whether the General Assembly intended to wholly supplant all local zoning ordinances limiting land uses to certain zoning districts without regulating the details of oil and gas drilling expressly addressed by R.C. Chapter 1509."

He stressed that the current case only considers five local ordinances, and that "in addition to power derived from the Home Rule Amendment, municipalities have statutory authority to regulate land uses within zoning districts to promote the public health, safety, convenience, comfort, prosperity, and general welfare."

Justices Paul E. Pfeifer, Judith Ann Lanzinger and William M. O'Neill dissented from the majority opinion.

Justice Pfeifer concluded that "R.C. 1509.02 leaves room for municipalities to employ zoning regulations that do not conflict with the statute. By leaving some space for local control, the General Assembly has recognized that a 'big picture' approach with local input is the best way to encourage the responsible and sustainable development of Ohio's natural resources."

In a lengthy dissenting opinion, Justice Lanzinger also pointed out that state and local governments should be able to find a common ground when granting permits to drilling companies.

Citing the recent Ohio Supreme Court case Cleveland v. Ohio, she wrote: "although the statute had subjected towing entities to regulation by the Public Utilities Commission, we recognized that there were areas that might not be regulated by the PUCO, thus allowing municipalities to supplement the state law. Because the second sentence of [the statute] attempted to eliminate any municipal regulation, we held that it violated the Home Rule Amendment."

"There is no need for the state to act as the three-thousand-pound gorilla, gobbling up exclusive authority over the oil and gas industry, leaving not even a banana peel of home rule for municipalities," Lanzinger concluded.

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