Jump to Navigation
Jump to Content

EQT Production Co. v. Wender

ELR Citation: 46 ELR 20110
Nos. 2:16-cv-00290, (S.D. W. Va., 06/10/2016) (Copenhaver, J.)

A district court held that West Virginia law preempts a county's ban on wastewater disposal wells. The ordinance effectively outlaws horizontal drilling anywhere in the county. It establishes a general, countywide ban on all storage of wastewater except for temporary storage of wastewater at drilling sites permitted under the state code, which pertains to drilling vertically—not horizontally—into oil- or gas-bearing rock formations. But those portions of the ordinance regulating the temporary storage of wastewater at conventional vertical extraction sites are preempted by the West Virginia Oil and Gas Act. The state has comprehensively regulated oil and gas operations, including storage activity at drilling sites, and left no room for local control. Consequently, the provisions of the ordinance that purport to regulate the on-site storage of wastewater at drilling sites are preempted by state law. In addition, the state's underground injection control (UIC) program, administered by the state pursuant to the federal SDWA, permits the use of UIC wells for permanent underground disposal of wastewater and, thus, is in conflict with the ordinance’s prohibition on the permanent storage of wastewater in UIC wells. The county cannot unilaterally prohibit conduct that federal and state law both expressly permit. West Virginia has concluded that oil and natural gas extraction is a highly valuable economic activity subject to centralized environmental regulation by the state's environmental agency. In the absence of an express grant of authority to the contrary, or the necessary implication of such authority flowing from an express grant, the county cannot interfere with, impede, or oppose the state’s goals.