Local government’s authority to regulate fracking minimized, but not eliminated
On February 17th, the Ohio Supreme Court ruled in Beck Energy v. Munroe Falls that local governments can not impose separate permitting requirements for oil and gas production activities.[1] A local Munroe Falls ordinance required a “conditional zoning permit” for excavation or construction and four other city ordinances imposed specific requirements on activities involved with oil & gas, including hydraulic fracturing (“fracking”). Beck Energy received a drilling permit from ODNR, but failed to comply with the local ordinances. In 2011, the city issued a “stop work” order and sought an injunction in the Summit County Court of Common Pleas.
The Ohio Supreme Court ruled that Munroe Falls’ ordinances were preempted by the comprehensive state laws governing oil and gas activities in Ohio. Initial reaction to this decision has been that it eliminates local governments’ ability to regulate fracking. However, while this case articulates limits on the ability of local governments to regulate fracking activities, there remain several areas in which local governments may use their powers to ensure that oil and gas activities are consistent with the development aims of the municipality.
For example, municipalities have the ability to regulate general activities that may impact oil and gas operations without pinpointing oil and gas related situations. As Judge O’Connell pointed out in his concurring opinion, municipalities have statutory authority to regulate land uses within zoning districts to promote the public health, safety, convenience, comfort, prosperity, and general welfare.[2] Municipalities also have home rule and statutory power to regulate the use of bridges and public rights of way, so long as that regulation does not discriminate against what the state has permitted.
As a result, local governments cannot impose outright bans on fracking, or even impose specific requirements pinpointing fracking as a specific industry. However, local governments can still craft regulations that limit the impact of fracking activities, in a way that fits within the statutory authority held by local governments. All sides will need to consider their options carefully as this area of the law develops.
[1] State ex rel. Morrison v. Beck Energy Corp., Slip Opinion No. 2015-Ohio-485 (Feb. 17, 2015).
[2] Id, ❡41; see also O.R.C. 713.07. Care will need to be taken in drafting local ordinances, since the ODNR regulation of drilling addresses safety, and there will be potential for conflict with state law.
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