The Ohio Supreme Court on Tuesday struck a hard blow against local municipalities’ abilities to control fracking, handing down a 4-3 ruling stating that local zoning and land-use ordnances cannot be used to prohibit the controversial drilling technique if state law allows it.
The decision comes in response to a lawsuit by the city of Munroe Falls, a suburb outside of Akron, which has been trying to prohibit drilling by Beck Energy Corp. Beck sought to begin drilling on private property in Munroe Falls in 2011. The Ohio Department of Natural Resources issued the company a permit, but the city sued to block drilling, citing a clause in the state constitution that provides for so-called “home rule.”
The court has ruled that clause does not apply to drilling activities, which a 2004 law made explicitly the domain of the state. That law was passed in an attempt to bring some consistency to the state’s oil and gas regulations, lawmakers said at the time. When state laws and local laws conflict, state laws win out, the court said.
"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,’ " Justice Judith French wrote in the majority opinion.
Justice Terrance O’Donnell ruled with the majority, but issued his own more limited opinion on the case. The scope of lawmakers’ intentions when they passed the 2004 legislation isn’t immediately clear, he wrote in his opinion. O’Donnell says it’s uncertain whether the law is meant to usurp all local zoning and land-use ordinances when it comes to drilling.
Fracking, or hydraulic fracturing, breaks up subterranean layers of rock to access hard-to-reach oil deposits. The practice has caused controversy over concerns that it can pollute groundwater and even cause small earthquakes.
Three justices dissented, citing concerns about local control over fracking. Justice William O’Neil called the decision a victory for big oil, which has lobbied for laxer regulations in the past decade.
“What the drilling industry has bought and paid for in campaign contributions they shall receive,” O’Neil wrote in his dissent. “The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio."
Justice Judith Lanzinger dissented on the grounds that state law and local home rule ordinances don’t necessarily have to be in conflict. Both Lanzinger and Justice Paul Pfifer, the third dissenter, argued that the 2004 law leaves more room for local control than the majority ruling grants.