On January 31, 2014, C|M|LAW Professor and Associate Dean for Academic Enrichment Heidi Gorovitz Robertson published a blog post, Pennsylvania’s Environmental Rights Might Snag Drillers, in Crain’s Cleveland Business’ Shale Report. Robertson has written previously in Crain’s about the struggles Ohio and other states face when local governments attempt to control local activities of the shale oil and gas industries. In particular, Ohio legislation seems effectively to preempt local regulation. An intermediate court in Ohio has upheld the state’s ability to prohibit such local regulation, but the Supreme Court of Ohio has yet to hear a case on this issue.
In neighboring Pennsylvania, however, the Supreme Court has struck down, on state constitutional grounds, the legislature’s attempt to preempt most local regulation of shale oil and gas drilling. To do this, the Pennsylvania court relied on an environmental rights provision in that state’s constitution. The court thus returned to Pennsylvania’s local governments the authority to regulate hydraulic fracturing as an industrial use under their land use and zoning ordinances. Pennsylvania’s preemption of local regulation of hydraulic fracturing appeared dead.
According to two state agencies, however, the Court’s decision was not supported by the facts, and on Jan. 2, 2014, they asked the Court to reconsider its December 2013 decision. We don’t know yet whether the Pennsylvania Supreme Court will agree to reconsider.
In the meantime, Ohio’s can ponder the possibilities. The Ohio and Pennsylvania Constitutions both have Home Rule provisions and some Ohioans have hoped that Ohio courts would use that provision to strike down Ohio’s legislative preemption of local oil and gas ordinances. So far, Ohio courts have not done this. Although Pennsylvania has a similar Home Rule provision, that state’s court did not rely on it to strike down the preemption of local regulation. Instead, it used the environmental rights provision. Ohio’s Constitution does not include an environmental rights provision.
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