Mixed Bag: OH Supreme Court Strikes Down Local Fracking Ordinances, But Leaves Door Open for Communities to Adopt Protections

While that may not be a perfect metaphor for the Ohio Supreme Court's disappointing decision last week in State ex rel. Morrison v. Beck Energy Corp, which struck down several ordinances adopted by the City of Munroe Falls to protect the community from the impacts of oil and gas extraction, the opinion leaves ample room for optimism. (To read the amicus brief we filed in the case on behalf of other municipalities, click here).

But first, let me recap the bad news. While the Court was divided -- with many of the justices writing separate opinions, and no one opinion adopted in full by a majority of the justices -- it ultimately held that five local laws could not be enforced against oil and gas drillers. Some of these laws were general, such as the requirement for drillers to obtain a zoning certificate for wells (just as any developer would need to build a house or shopping mall). Others were specific to oil and gas drilling, such as a mandatory waiting period and public hearing before drilling. On the whole, four out of seven justices agreed in a "plurality" opinion that these laws collectively created a "licensing" scheme, which the state's oil and gas drilling license law -- implemented by the Ohio Department of Natural resources (ODNR) -- overrides.

That said, while this type of opinion could have broadly prohibited all sorts of local laws across the state, the Court was extra careful to note that the decision is "limited to the five municipal ordinances at issue in this case." In other words, the Court left open the question whether "other ordinances could coexist" with the state's oil and gas law.

Justice O'Donnell (who agreed with the plurality opinion described above) wrote a separate opinion to emphasize the narrowness of the decision. Moreover, O'Donnell went a step further than the plurality opinion by suggesting that local municipalities may be best-suited to determine where oil and gas wells go in their communities. While acknowledging that ODNR has expertise in the technical and geologic aspects of well drilling to which localities should defer, he stressed that this expertise does not extend to whether an industrial well site is compatible with neighborhood character. Specifically, he noted:

we generally presume that zoning authorities are far more familiar with local conditions and therefore are better able to make land use decisions. We also expect that those who make land use decisions will be directly accountable to the people affected by them. Regulators at ODNR, on the other hand, are not.

This separate opinion was joined by three fiery dissents, all of which would have upheld the Munroe Falls ordinances and strongly supported the principal of local control over oil and gas drilling.

For those keeping track, that means four out of seven justices are either open to, or supportive of, the idea that Ohio cities, townships, and villages could enforce commonsense local zoning laws to direct aspects of oil and gas development in order to protect their communities, just as they do in nearby states like New York and Pennsylvania. (Although I'll note that, with more than half the court up for mandatory retirement in the next 5 years, things could change).

All in all, while last week's opinion may have left many local communities across Ohio feeling sour, there is still hope of a sweeter future.

Contributing author Meleah Geertsma