Can a Virginia county or city ban fracking inside its borders, or does state law take that authority away?

Plain-English summary

Fracking (hydraulic fracturing) had become a heated land-use issue in Virginia by 2015. The industry promised jobs and energy production. Local residents worried about groundwater contamination, earthquakes, truck traffic, air pollution, and damage to aquifers. Senator Richard Stuart asked the Attorney General two practical questions: can a Virginia locality outright ban fracking through zoning, and short of a ban, can a locality regulate things like drilling timing, noise, and traffic?

Attorney General Herring's answer surprised many observers because it overruled a 2013 AG opinion (issued under a previous administration) that had told localities they could not ban fracking. Herring's analysis came down to one statutory detail that the 2013 opinion had missed.

In 2001, the Virginia Supreme Court decided Blanton v. Amelia County, holding that localities could not use zoning to ban a state-regulated activity (in that case, the land application of biosolids). The reasoning: when the General Assembly licenses something, localities can't forbid it. The 2013 opinion read Blanton as applying to fracking too.

Herring spotted the difference: the biosolids statute in Blanton had no savings clause. The Virginia Gas and Oil Act does. Section 45.1-361.5 says the Act does not "limit or supersede the jurisdiction and requirements of . . . local land-use ordinances." Critically, that savings clause was enacted in 1990, one year after the Virginia Supreme Court's Resource Conservation Management decision reminded everyone that any intent to preempt zoning has to be made clear. So when the General Assembly added the savings clause, it knew exactly what it was doing.

The structure that emerges:

• Zoning bans on fracking: allowed. Localities can prohibit fracking through duly enacted zoning ordinances.
• Other local controls over fracking (special licenses, fees, bonds, conditions): preempted by the Act.
• Local zoning regulations short of a ban (timing, noise, location, traffic): allowed if they don't conflict with the Gas and Oil Act or Board regulations.

To the extent the 2013 opinion conflicted, Herring overruled it.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The relevant Gas and Oil Act provisions have been amended and recodified in the years since. Verify current law before relying on any specific rule mentioned here.

Common questions

Can a Virginia county simply pass a zoning ordinance saying "no fracking inside our borders"?

Under this opinion, yes, provided the ordinance is duly enacted (proper procedure under the zoning enabling statutes). Herring reaffirmed that § 15.2-2280 lets localities "regulate, restrict, permit, prohibit, and determine" land uses, and that the Gas and Oil Act preserves that authority.

What about a less aggressive approach, like requiring fracking only at certain hours?

That's also possible, but trickier. The zoning regulation must be "reasonable in scope" and not conflict with the Gas and Oil Act or with Board of Mines, Minerals and Energy regulations. Herring declined to opine on whether any specific regulation would survive preemption analysis.

Can a Virginia city charge a special license fee for fracking operators?

No. Local licenses, permits, fees, or bonds related to gas/oil operations are entirely preempted by § 45.1-361.5, which says no locality may "impose any condition" beyond what the Act requires (except via zoning).

Did this opinion mean the Blanton case is no longer good law?

No. Blanton remains good law for activities regulated by statutes without a savings clause. Herring's distinction was that the Gas and Oil Act has a savings clause that biosolids regulation didn't.

Could a fracking company sue a locality that banned fracking?

The opinion didn't discuss federal-law issues or constitutional claims (takings, due process) that might be raised against a fracking ban. Herring expressly flagged that those issues were outside the scope of the opinion and would depend on the specific facts.

Background and statutory framework

Virginia's local land-use authority comes from § 15.2-2280, which expressly lets localities "regulate, restrict, permit, prohibit, and determine" land uses. The Supreme Court of Virginia has confirmed in cases like Resource Conservation Mgmt. v. Bd. of Supvrs. (1989) and Cnty. of Chesterfield v. Windy Hill, Ltd. (2002) that this is a broad grant. The statute lists illustrative land uses including "[t]he excavation or mining of soil or other natural resources," which Herring read to cover fracking.

The Virginia Gas and Oil Act (Va. Code §§ 45.1-361.1 to 45.1-361.44) creates a state permitting and regulatory framework administered by the Department of Mines, Minerals and Energy (DMME) and the Virginia Gas and Oil Board. The Board has broad rule-making authority including spacing, pooling, waste prevention, and well classification.

Two provisions of § 45.1-361.5 are in tension:

• The first says no locality "shall impose any condition, or require any other local license, permit, fee or bond to perform any gas, oil, or geophysical operations which varies from or is in addition to the requirements of this chapter."
• The second is a savings clause: nothing in the Act limits or supersedes "the jurisdiction and requirements of . . . local land-use ordinances."

Herring read these together to mean that all non-zoning local controls are preempted, but zoning authority survives.

The doctrinal anchor for the savings clause's significance was the timing. The General Assembly added § 45.1-361.5 in 1990, one year after the Virginia Supreme Court's Resource Conservation Management decision had emphasized that "when the General Assembly intends to preempt a field, it knows how to express its intention." The Court in that case had upheld local zoning bans on landfills against a preemption challenge. The 1990 General Assembly chose to add a savings clause rather than to preempt, which Herring took as deliberate.

Herring also noted that a 1993 AG opinion had interpreted § 45.1-361.5 to allow special-use permits for gas drilling, and the General Assembly had not amended the law in the 20+ years since, suggesting legislative acquiescence in that reading.

Citations

• Va. Const. art. VIII (Dillon Rule context)
• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 1-248 (local ordinances cannot conflict with state law)
• Va. Code Ann. § 15.2-2280 (broad local zoning authority)
• Va. Code Ann. § 15.2-2284 (zoning purposes)
• Va. Code Ann. §§ 45.1-361.1 to 45.1-361.44 (Virginia Gas and Oil Act)
• Va. Code Ann. § 45.1-361.5 (Act savings clause)
• Va. Code Ann. § 45.1-361.13 (Virginia Gas and Oil Board)
• Va. Code Ann. § 45.1-361.15 (Board rule-making)
• Va. Code Ann. § 45.1-361.29 (Chesapeake Bay drilling restrictions)
• Va. Code Ann. § 67-102 (Commonwealth Energy Policy, with savings clause)
• 4 Va. Admin. Code §§ 25-150-10 et seq. (DMME fracking regulations)
• Resource Conservation Mgmt., Inc. v. Bd. of Supvrs., 238 Va. 15 (1989)
• Blanton v. Amelia Cnty., 261 Va. 55 (2001) (distinguished)
• Dail v. York Cnty., 259 Va. 577 (2000)
• Cnty. of Chesterfield v. Windy Hill, Ltd., 263 Va. 197 (2002)
• Cape Henry Towers, Inc. v. Nat'l Gypsum Co., 229 Va. 596 (1985)
• 2013 Op. Va. Att'y Gen. 231 (overruled in part)
• 1993 Op. Va. Att'y Gen. 173

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/14-084_Stuart.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
May 5, 2015

The Honorable Richard H. Stuart
Member, Senate of Virginia
Post Office Box 1146
Montross, Virginia 22520

Dear Senator Stuart:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether a locality may use its zoning authority to prohibit "unconventional gas and oil drilling," commonly known as "fracking" (short for hydraulic fracturing). You also ask whether a locality may use zoning to regulate certain aspects of fracking, such as the timing of drilling operations, traffic, or noise. This Opinion addresses only fracking, and not any other type of activity involving the exploration for, mining of, or transportation of any natural resource.

Applicable Law and Discussion

Fracking is a method of retrieving oil or natural gas by injecting fluid into underground shale beds at high pressure. As noted in your Opinion request, fracking has the potential to greatly increase domestic production of oil and gas and to spur economic development in localities located on or near shale beds. Fracking can also be an intensive land use, and the recent expansion of this industry has raised significant environmental and safety concerns. The potential dangers arising from this still-evolving technology include the depletion of fresh water from aquifers, contamination of groundwater, earthquakes, and surface problems such as air pollution and industrial truck traffic. Fundamental land use questions are thus presented about fracking's compatibility with existing and planned uses of nearby lands.

Two steps are involved in determining the extent of local zoning authority over fracking. First, it is necessary to determine whether localities in Virginia have general authority under law to prohibit or otherwise to regulate fracking within their boundaries. If that question is answered in the affirmative, it is then necessary to determine whether the power to prohibit or regulate fracking is nevertheless preempted in whole or part by other applicable state law.

Dillon Rule Analysis

Virginia follows the Dillon Rule of strict construction, which provides that "municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable." A corollary to the Dillon Rule provides that the powers of local governing bodies are "fixed by statute and are limited to those conferred expressly or by necessary implication." Consistent with the Dillon Rule, a local governing body may prohibit fracking only if the legislature has expressly granted it the authority to do so, or if that power is necessarily implied from an express grant of power.

The General Assembly has delegated to localities the authority to control land use within their jurisdictions through zoning. The extent of local zoning powers is broad. Indeed, the Supreme Court of Virginia has stated that "[t]he legislative branch of a local government possesses wide discretion in the enactment and amendment of zoning ordinances," and its actions in doing so are presumed valid absent express limitations to the contrary. In addition, "[t]he mere fact that the state, in the exercise of the police power, has made certain regulations . . . does not prohibit a municipality from exacting additional requirements" through the use of its zoning powers.

As part of the broad zoning authority granted to them by the General Assembly, localities in the Commonwealth are permitted to prohibit certain land uses within their boundaries. Pursuant to § 15.2-2280, a locality "may, by ordinance . . . regulate, restrict, permit, prohibit, and determine" a variety of land uses within its jurisdiction. The Supreme Court of Virginia has confirmed that "by this language, the governing body of a locality is expressly authorized to prohibit a specific use of land."

While § 15.2-2280 contains an exemplary list of land uses that may be prohibited, the list is not exhaustive, and a specific mention of fracking would not be necessary for the use to fall within the purview of the statute. In any case, however, fracking falls within the plain language of the fourth example listed in the statute, "[t]he excavation or mining of soil or other natural resources." Given the plain language of the statute, the Virginia Supreme Court's acknowledgment of the broad zoning authority the statute grants to localities, and the lack of any intervening change to the statute, I conclude that the General Assembly has authorized localities to pass zoning ordinances prohibiting fracking. The plain language of the statute also authorizes localities to regulate fracking in instances where it is permitted.

What remains to be discussed is whether, and to what extent, the authority of localities to prohibit or otherwise to regulate fracking is preempted by state law.

Preemption Analysis

The question of preemption turns on whether a local ordinance regulating or prohibiting fracking is inconsistent with state law. "Any ordinance, resolution, bylaw, rule, regulation, or order of any governing body . . . shall not be inconsistent with the Constitution and laws of . . . the Commonwealth." Accordingly, any local zoning ordinance is preempted if it conflicts with state law.

Here, the potential source of state preemption is the Virginia Gas and Oil Act (the "Act"). This Act creates a state permitting process for oil and gas operations. Fracking is an oil and gas operation within the scope of the Act. The purposes of the Act include "[protecting] the citizens and the environment of the Commonwealth from the public safety and environmental risks associated with the development and production of gas or oil." The Act creates the Virginia Gas and Oil Board (the "Board"), which has "the specific power to issue rules, regulations or orders" (collectively, "regulations"). The permissible scope of these regulations is broad. Current regulations of the Board address a wide range of subjects relating to oil and gas development within the Commonwealth. Some subjects within the purview of these regulations involve issues that could also be addressed by local zoning ordinances.

The issue of regulatory preemption was addressed by the Supreme Court of Virginia in Blanton v. Amelia County. In that case, the Court held that localities could not prohibit the land application of biosolids in their communities through zoning because "a local government may not 'forbid what the legislature has expressly licensed, authorized, or required.'" The state law at issue in Blanton directed the State Board of Health to regulate the use of biosolids, leading the Court to conclude that localities could not subsequently ban such land use activity. In a 2013 Opinion addressed to Delegate Terry Kilgore (the "2013 Opinion"), this Office cited Blanton in concluding that localities may not pass zoning ordinances banning the exploration for, and drilling of, oil and natural gas.

However, there is a key difference between the statute that was at issue in Blanton and the Act. Section 45.1-361.5 of the Act expressly retains the authority of local land use ordinances, while the statute at issue in Blanton did not. While § 45.1-361.5 of the Act states that no locality "shall impose any condition, or require any other local license, permit, fee or bond to perform any gas, oil, or geophysical operations which varies from or is in addition to the requirements of this chapter," this same statute also includes a savings clause stating that the Act does not "limit or supersede the jurisdiction and requirements of . . . local land-use ordinances." While these two components of § 45.1-361.5 may be to some degree inconsistent, they can be reconciled in part by concluding that the only authority localities retain over fracking is land use or zoning authority. All other possible local powers over fracking operations are totally preempted, but zoning authority is not. And, as explained above, local land use authority includes the authority to prohibit certain uses, including fracking.

When the General Assembly passed the current Act in 1990, it included the savings clause that appears in § 45.1-361.5. It must be presumed this was done intentionally and that the amendment was "purposeful and not in vain." Furthermore, it must be presumed "the legislature acted with full knowledge of the law as it stood bearing on the subject" of the amendment. The 1990 enactment of the Act occurred approximately a year after a key 1989 decision of the Supreme Court of Virginia. That case was Resource Conservation Management, Inc. v. Board of Supervisors of Prince William County. There, the Court held that a locality could exercise its zoning authority to prohibit landfills from certain zoning districts, even though there was a statutory framework in place for regulating and permitting landfills. In essence, the Court in Resource Conservation Management held that local zoning authority was not necessarily preempted by a state regulatory program. With this fresh judicial reminder that any intent to preempt zoning powers must be made clear, the General Assembly chose not to entirely preempt local land use powers in the Act. Instead, it did the opposite: it expressed in clear and unmistakable terms its intent that local land use powers were to be left generally undisturbed. This stands in marked contrast to the absence of a savings clause for zoning in other portions of the Code of Virginia, including the statute relied on in Blanton.

Because the language of the savings clause in § 45.1-361.5 is clear, because it was enacted approximately a year after the Virginia Supreme Court's decision in Resource Conservation Management holding that local zoning authority is not necessarily preempted by a statutorily-authorized framework of regulations, and because statutory authority exists for localities to prohibit certain land uses through zoning, I must conclude that the General Assembly intended for localities to retain their authority to prohibit fracking through duly enacted zoning ordinances. Other types of local control over fracking that do not relate to zoning, such as license or fee requirements, are entirely preempted by the Act. To the extent that the 2013 Opinion conflicts with this conclusion, it is overruled.

I now turn to your second inquiry as to whether a locality, in the absence of a total prohibition on fracking, has the authority to control aspects of fracking such as the timing of drilling operations, traffic, or noise. As noted above, § 15.2-2280 provides localities with broad powers over zoning, including the ability to "regulate" and to "restrict" a variety of uses, which the Act generally preserves through its savings clause. Nevertheless, the Act also provides that no locality "shall impose any condition, or require any other local license, permit, fee or bond to perform any gas, oil, or geophysical operations which varies from or is in addition to the requirements of this chapter." As noted previously, it is clear under § 1-248 of the Code of Virginia that local ordinances may not conflict with the provisions of state statute or regulation.

Based upon the statutory framework, it is my duty to harmonize, where reasonably possible, differing statutes and differing portions of a single statute. As discussed above, there may be some degree of overlap between the regulations the Board is authorized to enact and local zoning ordinances. I conclude that a duly enacted local zoning restriction on fracking operations is valid only if, and to the extent that, it does not conflict with such a regulation, provided the regulation is within the scope of permissible regulations the Board may enact. Any local zoning ordinance must also be consistent with any statutory requirements for fracking operations set forth in the Act. Determining the extent to which particular zoning restrictions on fracking may possibly be preempted by state law will be governed by the particular facts, restrictions, and regulations at issue. Consequently, I can express no opinion on whether any particular zoning restriction has been preempted. I do note that the 2013 Opinion concludes in part that "a local governing body may adopt a zoning ordinance that places restrictions on the location and siting of oil and gas wells that are reasonable in scope and consistent with the Virginia Gas and Oil Act." That portion of the 2013 Opinion, as it may apply to fracking, is generally reaffirmed.

Conclusion

It is my opinion that the General Assembly intended to permit localities to prohibit fracking operations through duly enacted land use or zoning ordinances, and the Code of Virginia so provides. With respect to your second inquiry, localities may enact zoning restrictions on fracking only if and to the extent that the restrictions are reasonable in scope and are not inconsistent with the Act or regulations properly enacted pursuant to the Act.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General