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Federal Court Overturns West Virginia County’s Wastewater Ban

October 12, 2017

A federal appeals court has determined local governments in West Virginia may not ban oil and gas wastewater disposal wells within their borders.

A federal appeals court has ruled local governments in West Virginia may not ban oil and gas wastewater disposal wells within their borders.

Local officials in Fayette County, West Virginia prohibited oil and gas wastewater disposal within the county in January 2016, claiming authority under their traditional police powers to protect public health and safety. They justified their decision by citing concerns raised by local environmental activists about potential pollution from the wastewater wells, which store hydraulic fracturing fluids.

EQT Production Co., which operates a disposal well in the county, promptly sued to remove the ban. A federal district court ruled in the company’s favor and threw out the ban in June 2016. The county appealed the district court’s ruling.

In a two to one decision, the Fourth U.S. Circuit Court of Appeals upheld the district court’s ruling, finding state and federal laws preempt the ban. According to the August 30 ruling, state law gives the West Virginia Department of Environmental Protection sole authority over the wells through its federally approved underground injection control (UIC) program.

Writing for the majority, Judge Pamela Harris, a Barack Obama appointee, said, “West Virginia law simply does not permit a county to ban an activity—here, the permanent disposal of wastewater in Class 2 UIC wells—that is licensed and regulated by the state pursuant to a comprehensive and complex permit program.”

Calls for Regulatory Consistency

Gary Stone, vice president of engineering for Five States Energy, says federal and state government primacy over such regulations provides needed consistency.

“Major industries within states cannot function with a hodgepodge of local rules and regulations,” said Stone. “Multiple state court rulings have upheld the authority of state governments to regulate the oil and gas underground activity within those states. 

“While local governments retain some authority, such as regulations on noise levels or physical distances of wells from schools, they cannot assume the authority of the state,” Stone said. “The 4th U.S. Circuit Court of Appeals decision is consistent with previous federal and state court rulings, resulting in another setback to local governments’ attempts to circumvent state authority to regulate oil and gas activities,”

By upholding state primacy and the need for proof of harm to restrict oil- and gas-related activities, the appeals court’s ruling benefits the public and the energy industry alike, Stone says.

“Fayette County’s ban was evidently driven by local environmentalists attempting to restrict oil and gas activities, citing ‘precautionary prevention of harm’ from wastewater disposal in the absence of any facts or evidence of harm,” Stone said. “In the end, citizens benefit from consistent, nonpolitical regulation of major industries.”

Kenneth Artz (kartz@heartland.org) writes from Dallas, Texas.

Author
Kenneth Artz is a news reporter for The Heartland Institute. Artz has more than 20 years’ experience in nonprofit organizations, publishing, newspaper reporting, and public policy advocacy.
kartz@heartland.org @@KennethArtz

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