With the rapid growth of gas well permitting throughout the region, many towns are rushing to adopt laws and zoning restrictions to limit Marcellus Shale drilling and hydraulic fracturing. For example, in late 2010, the Pittsburgh City Council passed an ordinance banning natural gas drilling in Pittsburgh. In May, 2011, the Wellsburg, WV (Brooke County) City Council reportedly passed an ordinance to ban drilling within the Wellsburg city limits, and to ban fracking within one mile of the city?s corporate limits. Other city councils are in the process of considering such ordinances. On June 7, the Morgantown, WV City Council approved the first reading of an ordinance to ban fracking within Morgantown as well as within one mile of the Morgantown city limits. The Westover, WV City Council is expected to take up the issue of Marcellus Shale drilling at its upcoming June 20 meeting. Unlike the Morgantown ordinance, Westover?s draft amendment will not attempt to totally ban drilling within the municipal limits; instead, it will identify zoning districts in which drilling is not a permitted use and districts in which drilling can be carried out if the operator proves it can be done safely.
The ordinances take varying approaches. For example, at least in West Virginia, one approach is to rely on state statutory language granting cities the power to protect and promote public health, safety, and welfare along with another state statutory provision that allows cities to extend their authority one mile beyond the city limits. Another approach appears to be couched in terms of residents? clean water rights. It is anticipated that this effort to locally regulate horizontal drilling and fracking will spread; however, it remains to be seen whether such ordinances will withstand legal challenges.
Those with interests in the Marcellus and Utica Shale plays should consider and explore the legal remedies available resulting from the changing landscape of development limitations due to land use, zoning or other restrictions.
Our Energy and Government affairs team continue to monitor this situation closely. Please feel free to contact Sharon Flanery for more details. For general questions involving energy law, please contact the Energy Team at Steptoe & Johnson PLLC.