On Tuesday, February 17, 2015, a sharply divided Ohio Supreme Court held in a 4-3 decision that Ohio local governments do not have authority to enact certain local zoning ordinances restricting hydraulic fracturing. The Court found that an Ohio statute regulating oil and gas well production operations that gives state government “sole and exclusive authority” to regulate such operations does not allow for a municipality to impose its own permit requirements on oil and gas drilling operations.
The Court found that Ohio’s home rule authority does not allow a municipality to “discriminate against, unfairly impede, or obstruct oil and gas activities and production operations.” Accordingly, the local ordinances at issue were found to conflict with the state regulatory scheme. Justice Judith L. French authored the Supreme Court’s lead opinion, stating that “[t]his is a classic licensing conflict under our home-rule precedent.” “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.’” The opinions further states that the state, not local governments, has the “right to regulate ‘all aspects’ of the location, drilling, and operation of oil and gas wells, including ‘permitting relating to those activities.’”
“This is a classic licensing conflict under our home-rule precedent.”
Three justices joined in the majority opinion with a fourth voting in support of the majority opinion outcome but with a separate concurring opinion. That concurring opinion indicates that there might be room for local ordinances which ensure neighborhood compatibility, protect property values or accomplish a municipality’s long-range development plan.
The decision includes multiple dissenting opinions. Justice Judith Ann Lanzinger dissented in an opinion joined by Justices Paul E. Pfeifer and William M. O’Neill, and Justices Pfeifer and O’Neill each wrote additional separate dissenting opinions. Justice O’Neill’s dissent is particularly pointed: “The Ohio General Assembly has created a zookeeper to feed the elephant in the living room,” and “[w]hat the drilling industry has bought and paid for in campaign contributions they shall receive.” “The oil and gas industry has gotten its way,” wrote Justice O’Neill, “and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio.”