Bad News On Fracking: Ohio Court Says Local Bans Not Allowed

By Bob Downing, www.ohio.com

By a 4-3 vote, the Ohio Supreme Court ruled Tuesday that local drilling and zoning ordinances in Munroe Falls cannot be enforced because they conflict with the state law regulating oil and natural gas wells.

The decision takes local control of drilling away from communities and supports the state as the continued main overseer of drilling.

The court ruled that a Munroe Falls’ zoning ordinance and four local laws governing oil and gas drilling are not an appropriate exercise of the city’s home rule powers.

Munroe Falls had obtained a court order stopping Beck Energy Corp. from drilling until the company had complied with local laws.

Beck Energy, based in Ravenna Township, is “obviously very pleased and very happy with the decision,” company Vice President David Beck said.

Existing state rules on drilling have worked for 10 years, and the Munroe Falls landowner involved wanted the well drilled, Beck said.

He said Beck Energy intends to drill the disputed well, perhaps in the next year.

Munroe Falls Mayor Frank Larson declined to comment on the decision until he has a chance to confer with Law Director Jack Morrison Jr. and the city’s hired attorney, Thomas R. Houlihan of the Amer Cunningham law firm.

“We strongly believe that oil and gas development is a matter of statewide interest and should be managed by professionals with the expertise to adequately regulate and oversee the industry,” said Shawn Bennett, executive vice president of the Ohio Oil and Gas Association, a statewide trade group.

Anti-drilling activists in Ohio said they were disappointed by the ruling in a case that had received major attention.

“It’s really sad and tragic for the citizens of Ohio,” said Vanessa Presak, president of the Network for Oil and Gas Accountability and Protection. “The fact that communities cannot stop harmful industrial activities is tragic.”

In the Supreme Court’s lead opinion, Justice Judith L. French wrote that home rule does not allow a municipality “to discriminate against, unfairly impede, or obstruct oil and gas activities and operations that the state has permitted under R.C. Chapter 1509.”

The home rule amendment to the Ohio Constitution gives municipalities the power of local self-government — as long as their ordinances do not conflict with general state laws.

French determined that the Munroe Falls ordinances conflict in two ways with the state’s sole and exclusive regulatory authority over oil and gas production.

Joining her decision were Chief Justice Maureen O’Connor and Justice Sharon L. Kennedy. Justice Terrence O’Donnell agreed with the court’s judgment and wrote a separate concurring opinion, which Kennedy also joined.

Justice Judith Ann Lanzinger dissented in an opinion Justices Paul E. Pfeifer and William M. O’Neill joined.

Pfeifer and O’Neill each wrote a separate dissenting opinion as well.

Dissenting opinion

Lanzinger said she is not convinced the Munroe Falls ordinances conflict with state statute.

“What I believe must be recognized is that the state and the local authority have differing interests in this important matter,” she added. “The purpose of comprehensive local zoning is exercise of local police power to promote the health, safety, and general welfare of the public. … The purpose of R.C. Chapter 1509 is to regulate methods of producing oil and gas statewide. …

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

Lanzinger said she would return the case to the appellate court for it to determine whether the ordinances simply supplement the state regulation of oil and gas drilling in Ohio.

Pfeifer described the longtime history of oil drilling in Ohio and wrote that the legislature has tried in R.C. Chapter 1509 to provide order to the state’s “scattershot way of dealing with oil booms.”

“I would find that R.C. 1509.02 leaves room for municipalities to employ zoning regulations that do not conflict with the statute,” he concluded. “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.”

O’Neill wrote that local control of oil and gas drilling has been taken away from Ohio’s citizens.

“The Ohio General Assembly has created a zookeeper to feed the elephant in the living room,” he wrote. “What the drilling industry has bought and paid for in campaign contributions they shall receive.”

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