Continuing on this blog’s ongoing exploration of the intersection of state and local regulation of shale drilling (see last week’s post here, as well as prior posts here and here), several weeks ago Virginia Attorney General Ken Cuccinelli issued an advisory opinion finding that state oil and gas law effectively prevents localities from barring drilling for natural gas. In February of 2012, Washington County, Virginia’s Board of Zoning Appeals postponed consideration of zoning changes until the U.S. Environmental Protection Agency issues a public health assessment of the practice — which, as we previously discussed, will not be finalized until 2014. State Rep. Terry G. Kilgore (R) requested the Attorney General opinion on the legality of the county’s action.
By way of background, the Virginia Gas and Oil Board has established four, 160-acre units for drilling gas wells in Washington County. Although the opinion letter does not describe the type of drilling at issue, according to the Virginia Department of Mines, Minerals, and Energy all gas drilling in the state involves hydraulic fracturing.
In the January 11 opinion, Cuccinelli noted that Virginia’s Gas and Oil Act allows localities to control the location and siting of oil and gas drilling operations via their zoning authority “that are reasonable in scope and consistent with” state law. However, the law bars localities from effectively prohibiting drilling altogether. Key quote from the AG’s opinion:
Reading §45.1-361.5 so broadly so as to allow a locality to adopt a complete ban on the exploration and drilling of oil and natural gas would permit a few jurisdictions to thwart the stated policy goals of the Commonwealth, as expressed in the Commonwealth Energy Policy.
Two aspects of Virginia law may limit the nationwide import of this opinion, though. First, Virginia is a Dillon’s Rule state rather than a home rule state. In Dillon’s Rule states, local units of government only have powers that are expressly granted to them by the state government; in home rule states, localities have inherent powers to regulate certain types of activities. Key shale states such as Pennsylvania, Ohio, and Colorado are home rule states. Second, the state Gas and Oil Act contains an express carve-out from the Act’s pre-emptive nature for, among other things, “local land-use ordinances” — including zoning laws. Oil and gas laws in other states do not contain such an express carve-out. For example, Ohio’s revisions last year to its oil and gas laws expressly pre-empted most local regulation of drilling, and Pennsylvania’s Act 13 (the subject of the Robinson Township case before the state Supreme Court
) took a similar approach as to local land use regulation.