CHARLESTON — The state Intermediate Court of Appeals reversed a decision by the lower court, saying the City of Weirton cannot preempt a permit by the West Virginia Department of Environmental Protection.
SWN appealed an order by Brooke Circuit Court on Aug. 23, 2022, according to a November 1 opinion by the Intermediate Court of Appeals of West Virginia. Judge Thomas Scarr authored the opinion.
The central issue revolves around whether the municipal zoning ordinances of Weirton are preempted by the West Virginia Oil and Gas Act or the Natural Gas Horizontal Well Control Act and SWN argues that the Horizontal Well Act delegates "sole and exclusive authority" over oil and gas exploration and production activities to the West Virginia Department of Environmental Protection.
The ICA ultimately reversed the circuit court's order.
SWN applied for a conditional use permit from Weirton to drill at the Brownlee Site. The City initially had a setback requirement of 200 feet under the Unified Development Ordinance, however, before SWN's application was approved, the city enacted a new UDO, increasing the setback requirement to 2,500 feet and limiting oil and gas extraction to industrial-zoned districts, which the Brownlee Site was not part of.
The city's Board of Zoning Appeals denied SWN's application, citing incompatibility with the city's comprehensive plan. SWN then applied to the DEP for permits, and on Feb. 8, 2022, obtained Well Work Permit No. 47009-00328-00-00 for the Brownlee Site.
SWN subsequently filed a complaint against the city, claiming preemption by the West Virginia Oil and Gas Act and the Horizontal Well Act and the circuit court consolidated matters and stayed the writ of certiorari until determining the preemption issues. However, on Aug. 23, 2022, the circuit court issued an order rejecting SWN's preemption claim and SWN then appealed.
The crux of SWN's argument is that the Horizontal Well Act's delegation of authority to DEP preempts local zoning ordinances.
The intermediary appellate court supports SWN's position, emphasizing the comprehensive framework established by the legislature for oil well permits.
The Horizontal Well Act mandates DEP oversight, ensuring the proposed work is safe, environmentally sound and compliant with setback requirements. The court notes that the city's ordinances conflict with state statutes, especially the setback requirements.
Even though the city repealed the NUDO on Sept. 11, 2023, and re-enacted the 2005 UDO, the court finds that the conflict persists, as the city's UDO may have other provisions conflicting with state law.
The court dismisses the city's argument that it can require zoning approval post-DEP permit issuance, highlighting the Horizontal Well Act's language granting DEP "sole and exclusive authority" over permitting and location, according to the opinion.
The intermediate appellate court reversed the circuit court's order and affirmed SWN's argument that the Horizontal Well Act preempted the city's zoning ordinances. This decision underscores the legislature's intention to grant DEP exclusive authority over oil and gas activities in the state, limiting local government interference after obtaining state permits.
Attorneys for the parties declined to comment on the decision by the intermediate appellate court.
West Virginia Intermediate Court of Appeals case number: 22-ICA-83
