When States’ Legislation and Constitutions Collide with Angry Locals: Shale Oil and Gas Development and its Many Masters

This Article explores the nationally common problem of tension and conflict among state oil and gas statutes, constitutional home rule, and local control by considering intersections and tensions among the Ohio Constitution’s home rule authority, the Ohio oil and gas law’s preemption provision, and the many regulatory efforts of Ohio’s local governments. It explores the scope of the Ohio Constitution’s home rule authority, in part, by evaluating courts’ statements on the validity of several types of local ordinances, as they confront home rule and a legislative attempt at preemption. Types of local ordinances evaluated include those that prohibit or ban drilling, those that impose additional permitting fees, hearings or other requirements upon drillers, and those that pertain to more traditional exercises of zoning authority. The Article also considers some similar local control efforts in the region—in particular, in New York and Pennsylvania—which have constitutional home rule provisions similar to Ohio’s, and where, like Ohio, the shale oil and gas industry is active. By considering the constitutions, legislation, and local control efforts of nearby states that are, like Ohio, within the Utica, Marcellus, and Barnett shale plays, this Article gauges the legal circumstances under which localities might regulate the actions of the shale oil and gas industry within their borders, and under what circumstances these efforts might succeed. Because this problem presents itself throughout the country, this Article looks briefly at similar circumstances in other regions, in particular, Colorado and Texas. These states have active shale oil and gas industries, legislatures vigorously working to preempt local control, and some engaged local communities hoping to exert some influence over oil and gas activities in their jurisdictions