Home-Rule Hope: A Community Guide to Keeping Hydraulic Fracturing Off Local Property

Summary: In 2011, the city of Munroe Falls, Ohio sought to prevent Beck Energy Corporation from drilling until the company complied with the city’s relevant municipal ordinances. The citizens voted to create an ordinance that would ban hydraulic fracturing from the city’s territory. Subsequent cases challenged such ordinances, and such cases attempted to answer whether the city’s ordinances were a valid exercise of the city’s home-rule power. In 2015, the Ohio Supreme Court decided that the local ordinances conflicted with state law, which regulated oil and gas production within Ohio. The court held that the state law preempted the local ordinances because they sought to regulate oil and gas production in a similar manner. This is a problem however, because of many citizen’s concerns about the healthy, safety, and environmental risks that the technology presents. Several Ohio Supreme Court Judges’ concurring and dissenting opinions expressed concern that the majority’s decision created a severe deference towards preemption at the expense of traditionally recognized areas of municipal authority. How can Ohio communities save their land in light of the preemption decision?

__________________________________________

By Victoria Scozzaro

In State ex rel. Morrison v. Beck Energy Corp., the Court decided that because the state statute, Ohio Revised Code (O.R.C.) Chapter 1509, grants the Ohio Department of Natural Resources (ODNR) the “sole and exclusive authority” to regulate the permitting, location, and spacing of oil and gas wells and production operations within the state, the city of Munroe Falls was not permitted to create a local ordinance banning hydraulic fracturing. The Court also concluded that the Home Rule Amendment to the Ohio Constitution did not grant the city of Munroe Falls the power to enforce its own permitting system beyond the requirements of the Ohio state system of permitting.

This concerns many Ohio communities because the increasing use of hydraulic fracturing (fracking) to extract natural gas from shale rock formations deep within the earth has raised many public health and environmental issues in the past few years. These issues range from potential water contamination, air pollution, noise, dust, truck traffic, groundwater spills, methane emission leaks, and even earthquakes. The Environmental Protection Agency (EPA) released a study that reveals drinking water contamination linked to fracking sites. This is why many citizens want to keep fracking away from their homes.

It has been nearly 90 years since the Ohio Supreme Court upheld local zoning ordinances in Vill. Of Euclid, Ohio v. Ambler Realty Co. This historic case established that local zoning ordinances that preserve the common welfare are a proper use of police power. The decision in Morrison seems to contradict the basic principles of zoning laws and of Home-Rule authority, as it stripped citizens’ rights to decide what happens in their own hometown. The decision limits options for Ohio communities who are concerned that fracking operations will impede upon their enjoyment of their property. If Ohio citizens cannot prevent fracking in their community through the use of ordinances that target fracking specifically, they may be able to create zoning laws that would at least—in effect—limit or restrict fracking.

THERE IS STILL HOPE: MUNICIPALITIES STILL HAVE THE RIGHT TO “SUPPLEMENT” GENERAL LAW WITH ZONING ORDINANCES THAT DO NOT CONFLICT WITH GENERAL LAW.

  1. Communities May Still Develop Non-Conflicting Zoning Ordinances.The lesson from Morrison is that municipalities in Ohio cannot enact their own ordinances that directly effect fracking. However, there are several other ways in which a town may issue a zoning ordinance that does not relate directly to fracking, but may indirectly prohibit the activity. In Morrison, Judge French conceded that while these five specific ordinances may be preempted, local authorities still have the right to invoke their Home-Rule authority over other areas. This may include some ordinances that would permissibly limit or impede upon hydraulic fracturing in an area. Ohio municipalities’ authority to enact zoning ordinances in O.R.C. 713.07 provides that, “municipalities, in the interest of the promotion of the public health, safety, convenience, comfort, prosperity, or general welfare, may regulate and restrict the location of buildings and other structures.” There is, therefore, hope for Ohioans to invoke the Home Rule Amendment to regulate land uses within zoning districts to promote the public health, safety, convenience, comfort, prosperity, and general welfare.

Judge O’Donnell even wrote separately to emphasis this limited scope of the Court’s decision in Morrison. The decision in Morrison does not mean that O.R.C. 1509.02 preempts local land use ordinances that address traditional concerns of zoning laws, such as ensuring compatibility with local neighborhoods, preserving property values, or effectuating a municipality’s long-term plan for development, by limiting oil and gas wells to certain zoning districts without imposing a separate permitting regime applicable only to oil and gas drilling. There are, therefore, other options that may permissibly protect local Ohio communities based on tradition zoning concerns. The following are zoning options that Ohio communities may still enact in light of the Morrison decision.

  1. Eight Local Zoning Ordinance Options that will Limit or Restrict Fracking in Communities
  1. Site Access/ Restrictions on Road Usage – Ohio municipalities may permissibly create zoning ordinances to prohibit access to well sites across public property, including public roads, without prior consent of the municipality. Local authorities and the Ohio Department of Transportation have the power under R.C. 4513.34 to grant permits for oversize vehicles to use the roads in their respective jurisdictions. Additionally, O.R.C. 723.01 provides,

Municipal corporations shall have special power to regulate the use of the streets. * * * [T]he legislative authority of a municipal corporation shall have the care, supervision, and control of the public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation.

As section 1509.02 states, “[n]othing in this section affects the authority granted to the director of transportation and local authorities in section 723.01 or 4513.34 of the Revised Code,” so long as the regulations do not “discriminate against, unfairly impede, or obstruct oil and gas activities and operations regulated.” Fracturing operations require hundreds of trucks to bring water, sand, chemicals, and equipment to well sties and to haul wastewater away from well sites. This increased traffic heavily impacts road infrastructure, as well as increased traffic and congestion. To drill a well in the Marcellus Shale, about 5.6 million gallons of water is required, which is delivered by hundreds of truckloads. Once fracking begins in an area, roads are used much more intensively and require more frequent maintenance. Maintaining infrastructure becomes extremely costly for communities, for example, Sublette County, Wyoming, spent over $60 million on its roads and water and sewage systems in 2009 alone, and it still needed an additional $160 million.

Local roads are normally not built to withstand the pressure of such heavy truck volume. Therefore, to protect local roads, ordinances may be enacted that would apply to all truck traffic, not just those related to the oil and gas industry. Municipalities may create ordinances establishing weight, height, and length limitations. Then, a fee may be charged to any vehicle not meeting those standards. Enforcing penalties and permit fees for trucks ensures that local roads are protected, ensures compliance, and also limits or impedes the oil and gas industry if they do not want to pay for such permits.

The Ohio Supreme Court has also stated that a municipality’s power of self-government includes the power to control its public ways by utility service providers and cable operators in City of Dublin v. State. Therefore, Ohio towns may regulation the public ways that utility providers use, because the Court has said that when the use involves installing and operating their equipment and facilities within the town border, the town’s rules are not preempted by state law.

  1. Distance Requirements— Ohio municipalities can—and should—require wells and other equipment be located a minimum distance from specified locations or structures. As fracking increasingly moves into densely populated areas, many municipalities throughout the country have started creating setback requirements as recent developments in technology have revealed more oil and gas deposits in shale and have allowed a single well to extract gas form one to two miles away. Such “setback,” or distance, requirements can prevent fracking operations too close to vulnerable areas that present special health, safety, or environmental concerns. Some setback regulations, for example, require that wells be kept away from watercourses, parks, inhabited buildings, public buildings, or schools.
  2. Noise Standards – Cities should adopt a noise ordinance to ensure a proper limit on noisy activities within their community. Oil and gas drilling creates a significant amount of noise from construction to traffic, then noise from pumpjacks, engines, compressor stations, etc. Even after drilling and fracking, compressor stations, which push gas through pipelines, remain in place and create loud humming noises for years—even decades. Residents’ actual perception of the noise levels, however, depend on the distance between the receptor and the equipment, the topography, vegetation, and meteorological conditions such as wind speed and direction, temperature, and humidity. A recent study done in La Plata County, Colorado indicates that a required “45 dBA (or lower) residential noise standard is reasonable, but will ensure residents’ health, safety, and enjoyment of property are not significantly harmed.”
  3. Aesthetic Requirements – Cities in Ohio may enact zoning ordinances that relate to aesthetic considerations. In Hudson v. Albrecht, for example, the Ohio Supreme Court found that aesthetic considerations could be taken into account by the legislative body in enacting zoning legislation because there is a legitimate governmental interest in maintaining the aesthetics of a community. The Court also found that aesthetics of the community relates to property values, which is also a legitimate concern because protecting real estate from impairment and destruction of value are includable under the general welfare aspect of the municipal police power and may therefore justify its reasonable exercise.

Accordingly, Ohio municipalities should enact aesthetic requirements for any property because there is a legitimate governmental interest in maintaining the aesthetics of the community and thus: aesthetic considerations may legally be taken into account by the legislative body in enacting zoning legislation. In Ohio, land use regulations related to aesthetic considerations are valid if either: (1) the regulation has a real and substantial relationship to a legitimate public purpose (other than aesthetics) even though aesthetic considerations may have played a part in its enactment;” or (2) if the regulations is based on purely aesthetic considerations, it is valid so long as the harm to the aesthetic character of the surrounding area which the regulation prevents is “generally patent and gross, and not merely a matter of taste.”In Ohio, aesthetic regulations such as screening fences, parking of recreational vehicles, the size, type and location of signs and billboards, and the architectural style of structures on the land all have been held to be within the legitimate scope of police power regulation.

The validity of an aesthetic regulation, therefore, is judged on whether the effect of the regulation on the particular land use prevents an appearance that is patently or grossly out of harmony with the visual character of the surrounding area. Because of the destruction of land, the dust, vibrations, and odors that fracking operations require, cause most people to consider the drill sites grossly out of harmony with the visual character of any given area. Therefore, zoning ordinances should be created to require drill sites to be free of high grass, weeds, and trash an impose fence and screen requirements.

  1. Use of Public Water Supplies – Ohio municipalities should also prohibit operators from accessing public water supplies for drilling and fracturing operations without securing necessary permits from both state and local officials.
  2. Dust, Vibration, Odors – Cities should establish a best practice standard to minimize the generation of dust, vibration and offensive orders and further require operators to incorporate reasonable feasible technological improvements in industry standards in the future to accomplish these goals. The current debate around nuisance suits against fracking companies is whether the industry’s interest in producing natural gas outweighs residents’ interest in peace and quiet. A mass litigation suit for nuisance against an oil and gas company, Antero and Hall, for fracking in neighborhoods is set for trial in West Virginia in 2016. The main complaints are traffic, noise, and odors from the natural gas wells, compressor stations and pipelines. This case may serve as a model for evaluating fracking nuisances under the common law nuisance question: does an action unreasonably interfere with the enjoyment of one’s property? The fact that there are so many plaintiffs involved in this case, however, shows how undesirable it is to live near fracking sites.
  3. Lighting – Because oil and gas extraction occurs at all hours of the night, lights are on all throughout the night. Cities should prohibit lighting from shining directly on public roads, adjacent, property, or property within 300 feet of the site and further provide to the extent practicable site lighting be directed downward and internally so as to avoid glare on public roads, adjacent dwellings and other buildings, and any such dwellings or buildings within 300 feet of the site. This would prevent the nuisance of heavy lighting disrupting the community all throughout the night.
  4. Lobby! – Although the Ohio Supreme Court refused to rule in favor of strong policy arrangements, the Ohio legislative body may be lobbied to ensure these concerns are heard. In Morrison, the city presented strong policy reasons for why local governments and the state should work together, with the state controlling the details of well construction and operations and the municipalities designating which land within their borders is available for those activities. The Court found that while these arguments present important and interesting concerns, they should be presented to the elected representatives in the General Assembly, not the judiciary. The Court thought that the issue in Morrison was not whether the law should allow municipalities to have concurrent regulatory authority, but whether R.C. 1509.02 and the Home Rule Amendment do allow the situation of double licensing which was at issue. Grass-roots movements are deeply rooted in American society, and can act as powerful tools towards more fair laws. Concerned citizens in Ohio, therefore, must act quick to lobby their Home Rule concerns at each legislative level to ensure the laws are clarified, and re-evaluated or re-written such that principles of Home Rule Authority—as well as public heath and safety—may be restored.

III. Conclusion

The decision in Morrison v. Beck Energy is mistaken in finding that local towns are preempted from creating their own oil and gas regulations. The Court misinterpreted O.R.C. 1509.02 in finding that the state law preempts any and all local ordinances because it does not state so explicitly as the General Assembly has done in other statutes that were intended to preempt local authority. The Court is also mistaken because the Ohio State Constitution itself also grants municipalities the authority to regulate utilities in the Home Rule Amendment.

The concerns about hydraulic fracturing are reasonable and citizens in Ohio—and other states—have the right under the Home Rule Amendment to create land use regulations in the interest of public health, safety, and to avoid nuisances. Although the Munroe Falls ordinances were found preempted by state law in Morrison, the Court noted, “we make no judgment as to whether other ordinances could coexist with the General Assembly’s comprehensive regulatory scheme. Rather, our holding is limited to the five municipal ordinances at issue in this case.” This is critical because it means that there are other options for municipalities to use zoning ordinances in order to prevent hydraulic fracturing activities.

Cities must act quickly to enact ordinances that will still protect their health, safety, environment, and enjoyment of land. Creating zoning ordinances for rights-of-way/ road restrictions, distance requirements/ setbacks, noise standards, aesthetic requirements, dust/vibrations/ odor limitations, lighting restrictions, and restrictions on the use of public water supplies will all ensure the safety and well being of Ohio communities. Furthermore, citizens should lobby the legislature so that Home-Rule power may be returned to the people of Ohio.