The Ohio Supreme Court, in a 4-3 split decision, ruled that a city is prohibited from enforcing its own local fracking and zoning laws for oil and gas drillers if they conflict with a state issued permit granted under Ohio’s oil and gas well operations statutory regulation scheme, R.C. Chapter 1509.
The majority held that the Munroe Falls ordinances conflict with the state statute and are thus preempted by the permit already granted by Ohio for drilling using horizontal hydraulic fracturing, known as fracking. Fracking combines sand, water and chemicals which are injected at a high pressure into the shale rock underground to release oil and gas trapped inside the rock.
Beck Energy Corporation Beck Energy was granted a permit by the Ohio Department of Natural Resources (ODNR) to drill in the city of Munroe Falls. The permit contained 67 conditions regarding site preparation, waste disposal and notice to property owners within 500 feet of the well.
Ohio state law regulates the permit issuance, location, spacing and operations of oil and gas well drilling, while preserving the power to control public thoroughfare drilling regulation for the municipalities. Although cities are not explicitly restricted from regulating zoning of the drill sites, they are prohibited from exercising powers in a manner that "impedes, or obstructs oil and gas activities" regulated under the state law, according to the opinion.
The City of Munroe Falls filed an injunction against Beck Energy because it had not complied with their local ordinances regulating oil and gas drilling. The city argued that Ohio’s Home Rule amendment gives municipalities the authority to regulate matters that are strictly local, and that its ordinances were distinct from the state statute, according to the court opinion.
The majority called this distinction "fanciful," ruling that the local fracking ordinances in dispute “forbids...what the statute permits and licenses.” The majority and a concurring opinion emphasized that the ruling was limited to the five Munroe Falls ordinances at issue in the case. The question of “whether a municipality has authority to enact zoning ordinances that affect oil and gas wells within its territory is a question yet to be decided,” as stated in a concurring opinion.
The local zoning ordinances are a major issue because land risks associated to areas where fracking occurs. Vertical hydraulic fracturing wells have been in use for decades, but the addition of horizontal fracking only began in Ohio in 2011, according to the environmental advocate, Ohio Environmental Council (OEC). The drilling companies are not required to disclose what chemicals are combined with the five to ten million gallons of water used for each fracking cycle.
Of the 750 chemical components used, 65 are actually federally declared hazardous substances which can cause damage to the brain, blood and other organs through repeated exposure, according to the OEC. Between 15 to 35 percent of the fracking fluid remains underground, while the rest, which may become radioactive, returns to the surface to be re-used or disposed of. The disposal of the waste is not regulated by any governmental agency, according to the OEC.
In early January, a study published in The Bulletin of the Seismological Society of America, found that dozens of mild earthquakes were triggered by fracking lines in the surrounding area.
The dissenting opinions in the ruling discuss that Munroe Falls ordinances were and should be interpreted as “supplanting rather than as supplementing state regulation.” Cases in other states were referenced in which the local laws “coexisted” with the state law for drilling regulations in order to protect the safety of the communities where the wells exist.
But as it stands, according to a dissenting judge, “What the drilling industry has bought and paid for in campaign contributions they shall receive.” The cost? $1.8 Million contributed by fracking related companies to campaign funds for elected officials, candidates and political parties from 2011 to 2013, and $2.8 Million during the decade prior.
The case is State ex rel. Morrison v. Beck Energy Corp., Slip Opinion No. 2015-Ohio-485.