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Environmental – State Law Preempts Local Wastewater Rule

EQT Production Co. v. Wender (Lawyers Weekly No. 001-179-17, 32 pp.) (Harris, J.) No. 16-1938, Aug. 30, 2017; USDC at Charleston W.Va. (Copenhaver, J.) 4th Cir.

Holding: A West Virginia county’s local ordinance prohibiting the disposal of wastewater from plaintiff  oil and natural gas company’s wells in the county is preempted by the state’s complex regulatory program for injection wells; the 4th Circuit affirms summary judgment for the company.

Plaintiff EQT Production Company operates multiple oil and natural gas wells in Fayette County. It also operates one injection well, used to dispose of wastewater generated by its extraction wells by “injecting” the fluid underground. Although EQT’s injection well is regulated by the state and authorized by a state-issued permit, the county, concerned about potential health effects, sought to bar its operations, passing an ordinance that prohibits the disposal of wastewater anywhere within the county.

The county’s prohibition on the operation of state-licensed underground injection control (UIC) wells is in conflict with the state UIC permit program, and thus preempted under West Virginia’s Water Pollution Control Act; we need not decide the question of federal preemption under the Safe Drinking Water Act. The ordinance’s restriction on storage of wastewater at conventional well sites also is preempted. The ordinance’s storage restriction is in fundamental conflict with the Oil and Gas Act, under which the state has approved plaintiff’s plans for disposal at its in-county UIC well in the course of permitting plaintiff’s conventional wells.

The district court held that the county’s ban on wastewater disposal is preempted by the state and federal laws under which West Virginia issues injection well permits. We agree with the district court that the state legislature, in enacting a complex regulatory program for injection wells, did not leave counties with the authority to nullify permits issued by the state. We hold that this central aspect of the county ordinance is preempted by state law. Because we find related aspects of the ordinance to be preempted as well, we affirm the judgment of the district court in all respects.


Wynn, J.: I write separately to express my view that this significant and dispositive question of state law would be best resolved through certification to the Supreme Court of Appeals of West Virginia. Certification in this case would ensure that we do not adopt a rule with broad implications for environmental regulation in West Virginia – and perhaps, the balance of state and local authority in the state more generally – based on unsettled precedent.

I respectfully dissent from the decision to undertake this analysis without the aid of the body empowered by the citizens of West Virginia to answer this important issue of state law in the first instance.

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