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In Another Key Ruling, Ohio Court Strikes Down Local Oil/Gas Drilling Ban

An Ohio Common Pleas Court judge has handed the oil and gas industry another victory in the ongoing battle between the state's regulatory authority and local communities that want more control over operators by striking down a Cleveland suburb's charter amendment that sought to ban drilling.

Cuyahoga County Common Pleas Court judge Michael Astrab said a community bill of rights passed by Broadview Heights clearly conflicts with state law that gives the Ohio Department of Natural Resources (ODNR) preemptive authority to regulate the industry.

Broadview Heights voters approved the bill of rights in 2012. It amended the city's charter and banned the drilling of new oil and gas wells, as well as the transport and injection of the industry's waste.

Two conventional drillers, Bass Energy Inc. and Ohio Valley Energy, filed a lawsuit last June seeking declaratory relief to prevent the city from interfering with the drilling of a conventional well on 100 acres owned by a local church (see Shale Daily, July 28, 2014). The companies argued that the city did not have authority to do so under state law.

Astrab's decision to strike down the ban came nearly one month after the Ohio Supreme Court made a divided ruling that found state municipalities may not use their home rule powers to interfere with drilling because its regulation is the dominion of state government (see Shale Daily, Feb. 17).

Although the justices in that case did not rule specifically on the conflict between local zoning and the state's authority, they found that the city involved, Munroe Falls, had tried to enact ordinances that clearly conflicted with ODNR's "sole and exclusive authority to regulate the permitting, location and spacing of oil and gas wells and production operations," under Revised Code (RC) 1509 of state law.

Astrab cited both the high court's ruling and the same passage in his decision.

"Ohio law is clear with regard to the process of determining the validity of a city's ordinance in light of a state statute," he wrote. "In addition, the Ohio Supreme Court recently reiterated this analysis in the specific context of RC 1509. As such, the court finds that reasonable minds could come to only one conclusion: defendant's [ban] is preempted by RC 1509 as a matter of law under Ohio's home rule authority framework."

Although it is believed that the state Supreme Court's ruling leaves some room for argument about how local zoning ordinances can coexist with state law (see Shale Daily, March 9), Broadview Heights is not the only city in the state that has passed a drilling ban in recent years.

Activists in Youngstown have failed three times to pass a community bill of rights that would have banned drilling within city limits, while Mansfield, Cincinnati, Athens and Bowling Green have either passed or have tried to pass similar laws (see Shale Daily, May 7, 2014). If the bans were challenged in court, attorneys have said, they would likely be struck down, not only because of their conflicts with state law, but also because of their vague language.

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