County Ordinance Preempted by State’s Comprehensive and Complex Permit Program


In the case of EQT Production Company v. Wender, et al., on August 30, the U.S. Court of Appeals for the Fourth Circuit affirmed, in a 2-1 ruling, the lower court’s decision that a West Virginia county’s ordinance effectively barring the operation of a state-licensed injection well was preempted by a “web of state and federal laws comprehensively regulating oil and gas production and wastewater disposal in West Virginia.”

The County Commission of Fayette County, West Virginia was concerned by the fact that EQT Production Company (EQT) operated 200 oil and gas wells in the county, and utilized an injection well located in the county to dispose of the wastewater generated by the production activities of these wells. However, these operations have received the necessary permits from the state agencies, acting under the authority of the West Virginia Oil and Gas Act, the West Virginia Water Pollution Act and provisions of the federal Safe Drinking Water Act.

The Court of Appeals noted the County’s argument that the Virginia Water Pollution Act contains a savings clause which allows units of municipal government to take action to suppress nuisances and to abate any pollution. However, the Court of Appeals held that the 1943 ruling of the West Virginia Supreme Court of Appeals in Brackman’s Inc. v. City of Huntington provides the appropriate guidance to the federal courts in adjudicating the effect of such savings clauses on permits granted by the state:

If ‘an activity is sanctioned by the state’ — here, the operation of EQT’s UIC well, pursuant to a state — issued permit — then ‘a local governmental entity cannot legislate independently to prohibit or impede that activity.’

Citing EQT Prod. Co. v. Wender, 191 F. Supp. 3d 583, 596 (S.D.W. Va. 2016). Here, West Virginia law does not permit a county to bar an activity that is licensed and regulated by the state pursuant to a comprehensive and complex permit program.

In dissent, Judge Wallace argued that the most prudent course for the court to take would be to certify the preemption issue to the West Virginia Supreme Court of Appeals.