The litigation over the constitutionality of Ohio’s law R.C.1509.02 granting sole authority to the Ohio Department of Natural Resources to regulate activities associated with oil and gas exploration and production has reached the Ohio Supreme Court.

On September 6, 2013, the cities of Broadview Heights, Euclid, Mansfield, and North Royalton (the “Amici”) filed an amici curiae brief in support of the City of Munroe Falls’ position that drillers should be required to comply with local ordinances requiring construction and zoning permits (in addition to state laws and regulations).  Arguing that “all municipalities are entitled to fundamental rights to make land use determinations to protect community character and development goals,” the brief urges the Court to reverse an opinion of the Court of Appeals, Ninth Appellate District, which found that state law preempted Munroe Falls ordinances pertaining to zoning and construction.  According to the Amici, this finding, if upheld, would diminish the “tradition of municipal home rule” and eliminate “traditional municipal zoning authority over prevalent industrial use.”

The cities raise the following arguments in support of their position:

First, they assert that “community of character is of immense importance to the health, identity, and economic viability of Ohio’s communities.”  Building on this notion, the Amici contend that “hydrofracking is a heavy industrial process with the potential to [adversely impact] community character and development goals of Ohio’s local communities.”  Here, the Amici reference, among other things, damage to surface waters, emission of airborne toxics and other air pollutants, and operational noise in support of their position that hydrofracking poses harmful risks to community character.

While the costs and effects associated with hydrofracking affect each locality differently, the Amici assert that “municipal zoning protects community character from conflicting or inappropriate uses, such as hydrofracking.”  In fact, the cities argue that zoning serves as “Ohio’s principal method for communities to safeguard their character against incompatible and potentially destructive development.”  Moreover, according to the Amici, not only are the foundations of zoning rooted in a community’s right to protect itself against certain industrial uses, but also the Ohio courts have long recognized the importance of municipal land use decision making, e.g., “the ability of political subdivisions to zone their communities as they see fit, strikes at the heart of municipal home rule:  the orderly planning of a city.” (Brief, page 17, citing Canton v. State, 95 Ohio St. 3d 149, 157, 2002-Ohio-2005, 766 N.E.2d 963, 970 ¶ 38, 39).

Finally, the Amici argue that the existing state law which, per the Court of Appeals, Ninth Appellate District, preempts local ordinances, “fails to address the damage that hydrofracking will inflict on the character and locally important resources of many Ohio communities.”  According to the Amici, leaving the finding of this court in place “would allow indiscriminate and communitywide hydrofracking throughout every shale-bearing municipality in Eastern Ohio without regard to factors that determine community character – resulting in potentially devastating effects on the spirit, health, resources and economies of many of those communities.”

For the above reasons, the Amici urge the Ohio Supreme Court to reverse the holding of its lower court and continue Ohio’s “tradition of municipal home rule.”

As for a timeline as to when we can expect a decision on this matter, the City of Munroe Falls also filed its brief in the Ohio Supreme Court on September 6, 2013, meaning Beck Energy Corporation must file a response within thirty days.  Following the response, Munroe Falls will then have twenty days to file a reply brief.  After that point, oral arguments will be scheduled; however, the Clerk of the Court anticipates that these arguments will most likely not occur until early to mid-2014 (though there is a slim possibility the Court will hear the case before the end of 2013).  We will continue to update this blog as the case develops.

A link to the docket for this case can be found here.

Additional press covering the issue is available below:

Cleveland.com

Akron Beacon Journal Online