Source: Cleveland.com
COLUMBUS, Ohio — The Ohio Supreme Court on Tuesday ruled that communities may not exercise their home-rule powers to regulate oil and gas drilling if they conflict with a state law that regulates drilling across Ohio.
In its 4-3 decision, the court upheld an appellate court’s ruling against the city of Munroe Falls that struck down regulations the community was trying to enforce against a driller, Beck Energy.
Munroe Falls had won an injunction in Summit County Common Pleas Court that halted Beck from drilling, even though it had obtained permits from the state. It appealed to the Supreme Court after the Ohio 9th District Court of Appeals overturned that decision.
Before the case was argued last February, Munroe Falls Mayor Frank Larson had said the case wasn’t about oil and gas drilling. Rather, it was about communities fighting to preserve their constitutionally granted home-rule powers.
A half dozen other communities, including Broadview Heights, Euclid and North Royalton, filed briefs in support of Munroe Falls’ position.
Ohio’s home rule provisions in the state constitution permit communities to enact local rules and regulations so long as they do not conflict with general state laws.
But in her majority opinion, Justice Judith French wrote that the Munroe Falls regulations, which were enacted between 1980 and 1995, clashed with a 2004 law enacted by the General Assembly that provided for general statewide regulation of oil and gas drilling.
“This is a classic licensing conflict under our home-rule precedent,” French wrote in her opinion. “We have consistently held that a municipal-licensing ordinance conflicts with a state-licensing scheme if the local ordinance restricts an activity which a state license permits.”
Munroe Falls’ regulations, she wrote, “prohibit — even criminalize — the act of drilling for oil and gas without a municipal permit,” negating the state’s authority to regulate drilling. The state statute, though, provides that it, not municipal authorities, shall have sole authority “to regulate ‘all aspects’ of the location, drilling, and operation of oil and gas wells,” she noted.
“Article II, Section 36 vests the General Assembly with the power to pass laws providing for the ‘regulation of methods of mining, weighing, measuring and marketing coal, oil, gas and all other minerals.'” French wrote. “With the comprehensive regulatory scheme in [the regulatory statute], the General Assembly has done exactly that.”
The scope of home-rule authority, and the ability of the General Assembly to limit it, has sparked several court battles in recent years. Several times the Supreme Court has upheld the state’s authority to trump local regulations and ordinances.
The General Assembly has enacted several laws in recent years, many upheld by the Supreme Court, that were aimed at uniform regulation across Ohio. Among them:
- A law giving the state control over predatory lenders (2002).
- A law giving the state the exclusive power to regulate guns (2006)
- A law barring cities from requiring that their workers live in a certain place (such as within the city boundaries). (2006)
Indeed, the court has mentioned the need for uniformity in some of its rulings.
A 2010 case, for example, upheld the state law that blocked Cleveland and other cities from passing assault weapons bans and handgun registration requirements. Justice Evelyn Lundberg Stratton wrote that the statewide law was necessary to keep gun owners from being at the mercy of “a confusing patchwork” of licensing requirements and possession restrictions.
But the court also has recognized that home-rule power must be respected.
A ruling last year struck down part of a state law that forbid local governments from enacting any regulations over towing. That case, brought by the city of Cleveland, gave exclusive authority to regulate towing to the Public Utilities Commission of Ohio.
While the court upheld that part of the law, it said the portion forbidding any local regulation went too far.
“It is enough to say that municipalities may supplement state law in these unregulated areas, provided that the city ordinances do not conflict with general laws,” Justice Judith Lanzinger wrote.
French, in the ruling announced Tuesday, specifically cited that case, noting that the decision there was consistent with the decision in the Munroe Falls case.
French was joined by Chief Justice Maureen O’Connor and Justice Sharon Kennedy. Justice Terrence O’Donnell concurred in the judgment but wrote that he would only apply the ruling to the specific regulations in the Munroe Falls case.
Lanzinger, joined by O’Neill and Pfeifer, dissented with Tuesday’s ruling, writing that she was not convinced that the city’s regulations conflicted with the state law.
“In enacting Revised Code Chapter 1509 (the governing statute), the General Assembly sought to preempt the inconsistent patchwork of local health and safety regulations governing the technical aspects of drilling that had been permitted by the former version of the statute,” Lanzinger wrote. “If the legislature had intended to override all local zoning ordinances that affect oil and gas drilling, it could have declared that intent. … Yet it did not do so.”
Justices Paul Pfeifer and William O’Neill each wrote their own dissents, also.
Pfeifer added that in his view the legislature left open the possibility of local input, while enacting a statute that covered what he described as the “big picture.”
O’Neill’s criticism was more direct, saying the state statute took away citizens’ ability to regulate oil and gas drilling in their own backyards, regardless of how long their local zoning codes have been in force.
“Let’s be clear here,” O’Neill wrote. “The Ohio General Assembly has created a zookeeper to feed the elephant in the living room. What the drilling industry has bought and paid for in campaign contributions they shall receive.
“The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio,” he wrote. “Under this ruling, a drilling permit could be granted in the exquisite residential neighborhoods of Upper Arlington, Shaker Heights, or the village of Indian Hill — local zoning dating back to 1920 be damned.”