Municipalities across the country have attempted to place restrictions on the use of fracking associated with oil & gas drilling. Most cases involve outright bans on fracking or more rigorous permitting requirements. Ohio was no different. Other states, like Pennsylvania and New York, both allowed local regulation of fracking. Ohio was different, sort of.
The Ohio Supreme Court issued its decision in State ex del. Morrison v. Beck Energy Corp., ruling 4-3 that the City of Munroe Falls could not stop Beck Energy Corp. from drilling based on non-conformance with local ordinances. Justice French wrote the decision for the majority:
R.C. Chapter 1509 regulates oil and gas wells and production
operations in Ohio. While it preserves certain powers for local governments, it
gives state government “sole and exclusive authority” to regulate the permitting,
location, and spacing of oil and gas wells and production operations within the
state. R.C. 1509.02.
Ohio has Home Rule, which grants local governments the power to adopt local regulations. Ohio’s Home Rule provision is set forth in the Ohio Constitution, Article XVIII, Section 3, which states:
"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
It is the last part of the provision which is key- "as are not in conflict with general laws." Justice French opined that R.C. 1509 is a state law that establishes all regulation on permit, location and spacing of oil and gas wells. Justice French ruled that since the General Assembly clearly intended R.C. 1509 to regulate most aspects of oil and gas exploration, it follows that local governments lack authority to pass their own regulations. However, Justice French opinion was only supported by three of the Court’s seven justices.
Fourth Vote- Justice O’Donnell’s Concurrence
While Justice French’s opinion seems to be very clear that R.C. 1509 prohibits most aspects of local regulation of fracking, the fourth and deciding vote of Justice O’Donnell concur in judgment only. While his fourth vote struck down the City of Munroe’s law, his concurring opinion is not as clear cut as Justice French in terms of the scope of preemption of R.C. 1509.
Justice O’Donnell begins his opinion by noting that the Court’s decision is limited to the City of Munroe’s ordinances only. He also states that ordinances designed to add permitting requirements are preempted by R.C. 1509. However, Justice O’Donnell indicates other traditional areas of zoning may still be valid. He states:
"This appeal does not present the question whether R.C. 1509 conflicts with local land use ordinances that address only the traditional concerns of zoning laws, such as ensuring compatibility with local neighborhoods, preserving property values, or effectuating a municipality’s longterm plan for development, by limited oil and gas wells to certain zoning districts without imposing a separate permitting regime applicable only to oil and gas drilling."
This language makes clear the door is still open for local regulation. With Justice O’Donnell representing the swing vote, this decision is not as clear cut as the news media has portrayed. The majority of Justices do believe municipalities have powers to regulate fracking.
This key point seemed to be missed by many of the stories in the media. These are headlines from various papers (click on the link to read the full story):
"Local governments cannot regulate fracking, Ohio Supreme Court says." Columbus Dispatch
"Ohio Supreme Court case over Munroe Falls’ drilling laws could impact home rule authority across the state." Cleveland.com
"Ohio Municipalities Can’t Regulate Drilling and Fracking On Their Own, State Supreme Court Rules." Huffington Post