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Court Upholds Decision Striking Down West Virginia County Injection Ban

An appeals court sided with EQT Corp. this week, affirming a district court's decision to strike down a West Virginia county's ordinance banning oil and natural gas wastewater injection wells.

The U.S. Court of Appeals for the Fourth Circuit sided 2-1 Wednesday with a lower court's conclusion that an ordinance passed by the Fayette County Commission in West Virginia contradicted federal and state laws that regulate and permit injection wells.

"We agree with the district court that the West Virginia legislature, in enacting its complex regulatory program for injection wells, did not leave counties with the authority to nullify permits issued by the state," Circuit Judge Pamela Harris wrote in the majority opinion. "Accordingly, we hold that this central aspect of the county ordinance is preempted by state law."

Fayette County passed the ordinance -- the first of its kind in West Virginia -- last year after local activists submitted a petition calling for the ban.

EQT, which operates conventional wells and an underground wastewater injection well in the county, challenged the ordinance. A district court judge promptly granted an emergency motion to halt enforcement of the ordinance before later ruling in EQT's favor.

The appeals court upheld that decision Wednesday. While there were other factors at play, such as the county's attempt to revise the ordinance to avoid impacting temporary wastewater storage at oil and gas extraction sites, the central question in the case is straightforward, according to Harris.

"We need only determine whether a West Virginia county is authorized to take aim at the permitted activity itself, enacting a blanket prohibition on conduct specifically licensed by the state," Harris wrote. "Under well established principles of West Virginia law, the answer to that question is no."

Circuit Judge James Wynn dissented, arguing that the questions in the case would be better answered by West Virginia's Supreme Court of Appeals.

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