United States: Fourth Circuit Concludes That West Virginia State Law Preempts Local Ordinance Banning Oil And Natural Gas Wastewater Storage

Last Updated: September 22 2017
Article by Thomas C. Ryan, Travis L. Brannon, Emily W. Weiss and Anthony R. Holtzman

On August 30, 2017, in EQT Production Company v. Wender, the United States Court of Appeals for the Fourth Circuit affirmed a federal district court's invalidation of a West Virginia county's ordinance banning oil and natural gas wastewater storage at horizontal drilling sites and underground injection control ("UIC") wells. The Fourth Circuit concluded that the West Virginia Oil and Gas Act (the "Oil and Gas Act") and West Virginia UIC Program preempted the ordinance. 1The Fourth Circuit's ruling is the latest development in the evolving caselaw regarding whether, in the Appalachian Basin, local governments are preempted from regulating oil and gas operations.2

The Wender Decision

In its decision, the Fourth Circuit ruled in favor of EQT Production Company ("EQT") by affirming the U.S. District Court for the Southern District of West Virginia's holding that Fayette County's (the "County") ban on wastewater disposal is preempted by the state and federal laws under which West Virginia issues injection well permits.3

In January of 2016, Commissioners of Fayette County, West Virginia (the "County") enacted an "Ordinance Banning the Storage, Disposal, or Use of Oil and Natural Gas Waste in Fayette County" (the "Ordinance"), which explicitly prohibited the use of UIC wells for purposes of permanently disposing of natural gas waste and oil waste. 4Immediately afterwards, EQT challenged the Ordinance in the district court, asserting that it was preempted by the comprehensive state and federal regulations that are associated with West Virginia's UIC permit program, the federal Safe Drinking Water Act, and the Oil and Gas Act. 5 EQT asked the court to enjoin the enforcement of the Ordinance. 6 In response, the County argued that the savings clause in West Virginia's Water Pollution Control Act ("WPCA") gives it the authority to abate anything that its commission determines to be a public nuisance, including UIC wells. 7

The Fourth Circuit explained that, in West Virginia, county commissions have only the powers that are granted to them by the state, meaning that when a "provision of a municipal ordinance is inconsistent or in conflict with a statute enacted by the Legislature the statute prevails and the municipal ordinance is of no force and effect." 8 The Fourth Circuit stated that, as a result, "West Virginia law simply does not permit a county to ban an activity—here, the permanent disposal of wastewater in Class 2 UIC wells—that is licensed and regulated by the state pursuant to a comprehensive and complex permit program." 9

The Fourth Circuit also explained that the County's reliance on the savings clause in West Virginia's WPCA was misplaced because West Virginia regulates UIC wells not only under that statute but also under its Oil and Gas Act, which does not contain a savings clause. 10 Rejecting the County's broad interpretation of the WPCA's savings clause, the Fourth Circuit stated that the purpose of the clause is to preserve private citizens' rights to bring a nuisance action against a state-permitted activity, not to ban that activity altogether. 11

Finally, the Fourth Circuit held that the Ordinance's restriction on wastewater storage at conventional well sites was preempted because it conflicted with the Oil and Gas Act.12 Explaining that, under the Oil and Gas Act, "the legislature has vested in the state DEP the exclusive authority over regulation of the state's oil and gas resources," the Fourth Circuit concluded that by banning wastewater storage unless the storage was temporary and the wastewater would be permanently disposed in another county, the Ordinance was in fundamental conflict with the Oil and Gas Act and DEP regulations, which do not prohibit or impose temporal limits on wastewater storage. 13

In applying West Virginia law, therefore, the Fourth Circuit struck down a local ordinance that purported to regulate the mechanics of oil and gas operations. The court, however, did not address whether local ordinances may impose restrictions on where oil and gas operations may occur. 14

The Future of Local Regulation of Oil and Gas Operations in West Virginia

Generally speaking, under the evolving preemption caselaw in West Virginia, local governments cannot enact ordinances that regulate the development of UIC wells. However, oil and natural gas production and associated companies operating in the Appalachian Basin should continue to monitor these issues so that they have a full understanding of their rights and obligations in relation to local government actions that impact their operations.


1 See EQT Prod. Co. v. Wender, No. 16-1938, 2017 WL 3722448, at *1 (4th Cir. Aug. 30, 2017).

2 The caselaw on this topic has been evolving not only in West Virginia, but also in Ohio and Pennsylvania. In Ohio, although a local ordinance may not restrict oil and gas operations that the state has specifically authorized, it is unclear whether and how "traditional goals of zoning" may be used to affect those operations. See State ex rel. Morrison v. Beck Energy Corp., 37 N.E.3d 128, 131 (Ohio 2015) (J. O'Donnell, concurring). In Pennsylvania, moreover, statutory provisions that first appeared in the state's 1984 Oil and Gas Act, which are once again controlling on the issue of preemption of local ordinances after the decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013), expressly preempt local ordinances that attempt to regulate well site procedures and operations but not local ordinances that regulate well location. See Robinson Twp., 83 A.3d at 977–84 (invalidating portions of Pennsylvania's Act 13).

3 Wender, 2017 WL 3722448, at *1.

4 Id. at *3.

5 Id.

6 Id.

7 Id.

8 Id. at *7 (internal citations omitted).

9 Id.

10 Id. at *8.

11 Id. at *9.

12 Id. at *10.

13 Id. at *10–11.

14 Several years before Wender, the Circuit Court of Monongalia County, West Virginia, invalidated a ban on hydraulic fracturing that the City of Morgantown had imposed, ruling that the state's interest in oil and gas development and production provides the DEP with exclusive control over this issue. See NE Natural Energy, LLC v. City of Morgantown, W. Va., No. 11-C-411 (W. Va. Cir. Ct. Monongalia Aug. 12, 2011). About a year later, the Morgantown City Council passed six ordinances that are unique in West Virginia in that they limit gas drilling to a certain area, namely, a 600-acre area surrounding the city's airport. Those ordinances have not been challenged in court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.