November 01, 2016

In Brief

Theodore L. Garrett

Constitutional law

EQT Production Company v. Wender, No. 16-00290, 2016 WL 3248503. (S.D. W. Va. June 10, 2016), app. pending No. 16-1938 (4th Cir.).
A federal district court granted a motion for summary judgment to plaintiff EQT Production Company, which operates oil and natural gas wells in West Virginia, in a lawsuit challenging a county ordinance banning the storage or disposal of wastewater produced in the course of oil and gas well production in any underground injection control (UIC) well. The ordinance provided for civil penalties and also for citizen enforcement. The trial court held that the ordinance was preempted by the West Virginia Oil and Gas Act, which comprehensively regulates oil and gas matters, including storage at drilling sites, and gives the state Department of Environmental Protection “[a]ll authority to oversee gas and oil exploitation in West Virginia.” The court also held that the ordinance was preempted by the West Virginia UIC program administered by the state pursuant to the Safe Drinking Water Act because it stands as an obstacle to state law. “[T]he state has undertaken to allow UIC wells, an action that operates to diminish the counties’ powers to prohibit them.” The court therefore held that the Fayette County Commission’s ban on disposal of wastewater in UIC wells and the regulation of wastewater storage at drilling sites are unenforceable.

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