Local Land Use Regulation of Oil and Gas Development: Pumpjacks and Preemption

Today, the regulation of oil and gas exploration and production activities by substate governmental units has reemerged after a lengthy quiescent period. Oil and gas activities obviously take place where the oil and gas is located. Historically that has been in rural areas, although there are clear exceptions. Population growth and urban sprawl has brought the citizenry to where the oil and gas wells are. People who move to the country not only want urban amenities, they also want the peace and quiet that they believe exists in the idyllic rural surroundings. One does not want to exchange the noise of the bus or emergency medical vehicle for the noise of the pump jack and the drilling rig. An additional factor causing this increase in substate unit regulation is the expansion of land use powers from municipalities to counties. Historically, municipalities were the substate units that engaged in land use regulation. Counties, the usual provider of governmental services in the rural regions of the United States, were often the stepchild of substate units lacking most of the traditional police powers exercised by the cities. In addition, counties were often left out of the home rule movement that transformed local governmental law in the 20th Century. As will be explained later, the concept of home rule gives substate units substantially greater freedom to exercise the t of home rule gives substate units substantially greater freedom to exercise the police power than had existed prior to the adoption of constitutional and statutory home rule regimes. All of these developments now make the understanding of local land use regulatory mechanisms important for all of the interested parties in oil and gas development, royalty interest owners, working interest owners and surface owners