Robertson Writes in Crain’s on Ohio Supreme Court Oral Argument regarding Local Attempts to Regulate Zoning of Shale Wells

Professor Heidi Gorovitz Robertson

Professor Heidi Gorovitz Robertson

C|M|LAW Professor and Associate Dean Heidi Gorovitz Robertson published Awaiting the court’s word on validity of local zoning control of well locations, in Crain’s Cleveland Business’ Energy Report on April 4, 2014.  In this post, Robertson notes that many Ohio communities hope to exercise some control over the shale oil and gas activities that will take place within their jurisdictions. Monroe Falls, in particular, would prohibit drilling in residentially zoned space and impose some other local requirements.

If the Ohio Court of Appeals was the end of the line, Monroe Falls’ zoning ordinance would be dead in the water, along with other local efforts to enact similar ordinances affecting the location of wells.  But Monroe Falls appealed to the Supreme Court of Ohio  and on February 26, 2014, the  Court heard oral argument on two specific issues. First, it considered whether the state statutes concerning oil and gas drilling deprive municipalities such as Monroe Falls of their Ohio Constitutional home rule authority to enact and enforce zoning laws (such as prohibiting shale drilling in residential zones).  The second issue was whether Monroe Falls’ ordinances, some of which required oil and gas drillers to submit information to Monroe Falls conflict with the state’s oil and gas law when the driller has already secured a drilling permit from ODNR.

Ohio and the affected driller, Beck Energy, argued that if the court allows localities to create their own rules, even zoning rules, the practice would undermine the state’s ability to carry out the Legislature’s statutory directives.  Monroe Falls, however, argued that local land-use regulation could operate in harmony with the state’s control of drilling operations and would not, therefore be pre-empted by the state law.

A couple of justices expressed serious doubts that ODNR really has “sole and exclusive authority” to preclude all local oversight with no administrative appeal. At least one seemed bothered that the statute does not expressly state a preclusion for municipal zoning authority, whereas the Legislature has shown that it knows how to do this in other statutes.  Justice Paul Pfeifer focused on the fact that under Ohio’s oil and gas statute, a driller can appeal a denied drilling request to the state agency, but a landowner has no opportunity to appeal the state’s decision to grant a driller’s permit request.

Only a few of the justices spoke up substantially at the oral arguments. We’ll have to wait to hear from the others when the opinion is released.  In the meantime, localities across the state will be watching to learn whether they will be able to decide where shale oil and gas drilling may occur within their borders.

To read the full post in Crain’s, click here:


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