On Feb. 17, 2015, the Ohio Supreme Court, in a 4-3 decision, struck down several local ordinances regulating oil and gas production on the grounds that these ordinances were preempted by comprehensive state law and that the Ohio Home Rule provisions to its constitution did not grant a right for local ordinances to intrude upon this regulated area. The court found in State ex. Rel. Morrison v. Beck Energy Corp., Slip Op. 2015-Ohio-485, that five ordinances enacted in 1980 and 1995 by the city of Munroe Falls are preempted by the provisions of the Ohio Constitution in Article II, Section 36, which vest in the General Assembly the power to pass laws providing for the “regulation of methods of mining, weighing, measuring and marketing coal, oil, gas and all other minerals.” The court concluded that the Ohio General Assembly enacted a comprehensive regulatory scheme in Revised Code Chapter 1509 and that the Home Rule Amendment to the Ohio Constitution, Article XVIII, Section 3, does not allow a municipality to discriminate against, unfairly impede or obstruct oil and gas activities and production operations that the state has permitted under Chapter 1509.
The court’s decision may be limited, however, to the specific oil and gas ordinances at issue here, which prohibited oil and gas drilling without a local permit and further regulated oil and gas wells as a conditional use under the local zoning code. There may not be any preemption for general zoning ordinances that ensure compatibility with neighborhoods, preserve property values or effectuate a municipality’s long-term plan for development. See O’Donnell, J., concurring opinion at 13-14.
While the court’s decision might be viewed as a victory by the pro-hydraulic fracturing community, there is good reason to view the breadth of this opinion with caution given the obvious different views of several members of the court, including the swing vote. The door has been left open for more general zoning ordinances that affect oil and gas drilling to avoid preemption.