When Environmental Laws Conflict

To protect the interests of residents, businesses and the environment, should the requirements of a local environmental ordinance take precedence over state laws supporting natural resources business development?

Heidi Gorovitz Robertson, the Steven W. Percy Distinguished Professor of Law at CSU’s Cleveland-Marshall College of Law, is tackling this complicated debate. She hopes to provide better legal advice and policy support to the communities, state agencies and private companies that are often at odds in these cases.

Professor Robertson evaluates courts’ responses to local ordinances and zoning rules that prohibit or ban oil and gas drilling, pipeline construction or other activities many consider damaging to the environment. Especially in Ohio, tensions run high between those who want to encourage and enhance these activities for their economic growth potential and those who wish to curtail them to protect the environment, water supply and other local community interests.

“Many communities argue that they should have the right to regulate this type of business development in their jurisdictions because any environmental or water quality issues that occur as a result would directly and negatively affect their citizens,” Robertson says. “In response, many economic development groups and private companies argue that these decisions should be made at the state level so the legal system and rules with which developers must comply are uniform throughout the state.”

Robertson explores whether constitutional home rule, when coupled with the state’s preemption of local control, allows any room for local regulation of the environment. Her findings are critical to Northeast Ohio communities like Munroe Falls and Green. The former lost a case before the Ohio Supreme Court in 2015, resulting in invalidation of some of its local ordinances which were being used to limit oil and gas development within the city limits. The latter was unable to prevent the siting of a natural gas pipeline which was being constructed in a populated area within the municipality.

“The Munroe Falls and Green examples highlight the limited legal mechanisms currently available to local cities and towns in terms of helping them to protect the environment,” she adds. “However, they also brought more attention to the larger issue of environmental rights in the state and have helped spur additional actions by communities such as Toledo, which recently passed a ballot measure that created a Bill of Rights for Lake Erie designed to regulate the use of the lake within the city limits.”

While it remains to be seen how the state government and the courts will react to this new round of local legislation, Robertson hopes it will lead to a broader discussion of the need for stronger state environmental regulation. Unlike states such as Pennsylvania and New York, Ohio currently has no environmental rights provision in its state constitution.

“The continued push by local communities to play a larger role in the business and environmental decisions that directly affect their citizens should be a signal to state policy makers that this issue is not going away,” Robertson says. “A broader discussion of environmental protection needs to take place for the good of all citizens of the state.”