Appeals court says Fayette drilling waste ban is invalid

By Kyla Asbury | Aug 31, 2017

RICHMOND, Va. – A federal appeals court upheld a decision made by a West Virginia federal judge earlier this year that a drilling waste ban in Fayette County was preempted by state law.

The U.S. Court of Appeals for the Fourth Circuit issued its ruling on Aug. 30.

The appeals court ruled in favor of EQT Production Company. EQT had challenged a local ordinance passed by the Fayette County Commission.

U.S. District Judge John Copenhaver had previously sided with EQT in the case. Fayette County officials had appealed the ruling last August.

The appeals court said that the county’s ordinance conflicted with the provisions of West Virginia’s Oil and Gas Act and the West Virginia Department of Environmental Protection’s underground injection control program.

Judge Pamela Harris authored the opinion and was joined by Judge Paul Niemeyer. Judge James Wynn dissented.

The court agreed with the district court that the state Legislature, in enacting its complex regulatory program for injection wells, did not leave counties with the authority to nullify permits issued by the state, Harris wrote.

Wynn wrote that a case with such broad implications for environmental protection in West Virginia should have been sent to the state Supreme Court for a decision for a more thorough review there about the balancing of state and local authority on the issue.

He felt that the question of whether it preempted state law would be best resolved through certification to the Supreme Court of Appeals of West Virginia and not in the Fourth Circuit.

The defendants, Fayette County Commission President Matthew D. Wender; and Commissioners Denise A. Scalph and John H. Lopez,  appealed after a June 10, 2016, motion for summary judgment was granted by District Judge John T. Copenhaver.

Copenhaver said that the ordinance, which was passed by the Fayette County Commission in January 2016, violated portions of the West Virginia Oil and Gas Act and the Safe Drinking Water Act.

Copenhaver also found that the ordinance was unenforceable in allowing for civil enforcement actions against violators of the ordinance and that jurisdiction for this type of regulation belongs to the West Virginia Department of Environmental Protection.

In April 2016, two studies led by the U.S. Geological Survey confirmed waste from oil and gas disposal was found in surface waters and sediments near a controversial underground injection control well in Lochgelly operated by Danny Webb Construction.

EQT is represented by Timothy M. Miller and Christopher B. Power of Babst Calland Clements and Zomnir PC.

Wender, Scalph and Lopez are represented by Derek O. Teaney of Appalachian Mountain Advocates Inc. and Thomas A. Rist of Rist Law Offices.

U.S. Court of Appeals for the Fourth Circuit case number: 16-1938

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