Appeal: 16-1938 Doc: 21-1 Filed: 11/14/2016 Pg: 1 of 5 Total Pages:(1 of 44) UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT APPEARANCE OF COUNSEL FORM BAR ADMISSION ECF REGISTRATION: If you have not been admitted to practice before the Fourth Circuit, you must complete and return an Application for Admission before ?ling this form. If you were admitted to practice under a different name than you are now using, you must include your former name when completing this form so that we can locate you on the attorney roll. Electronic filing by counsel is required in all Fourth Circuit cases. If you have not registered as a Fourth Circuit ECF Filer, please complete the required steps at Re rister for e'Filin THE CLERK WILL ENTER MY APPEARANCE IN APPEAL 0. 16-1938 as Retained DCourt-appointed(CJA) [:lFederal Defender DPro Bono DGovernment COUNSEL FOR: The West Virginia Independent Oil and Gas Association, Inc. and The West Virginia Oil and Natural Gas Association, lnc. asthe (party name) appebands) appellee(s) petitioner(s) 0/ amicus curiae intervenor(s) movant(s) ?it/14.. I - (signature) Roger G. Hanshaw (304) 347-2115 Name (printed or typed) Voice Phone Bowles Rice LLP (304) 343?2867 Firm Name (if applicable) Fax Number 600 Quarrier Street Charleston, West Virginia 25301 rhanshaw@bowlesrice.com Address Email address (print or type) CERTIFICATE OF SERVICE I certify that on November 14, 2016 the foregoing document was served on all parties or their counsel of record through the system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Timothy M. Miller Derek Teaney (Appalachian Mountain Advocates, Inc.) Christopher B. Power Thomas A. Rist (Humphrey Rist, LLP) Babst Calland Clements Zomnir, P.C. Post Office Box 507 300 Summers Street, Suite 1000 Lewisburg, West Virginia 25901 Charleston, West Virginia 25301 Counsel for Appellants Counsel for Appellee . A l. I November14, 2016 Signature Date 01/19/2016 SCC Appeal: 16-1938 Doc: 21-1 Filed: 11/14/2016 Pg: 2 of 5 Total Pages:(2 of 44) No.16-1938 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT EQT PRODUCTION COMPANY Plainti?? Appellee V. MATTHEW D. WENDER, in his official capacity as President of the County Commission of Fayette County, West Virginia; DENISE A. SCHALPH, in her official capacity as a Commissioner of the County Commission of Fayette County, West Virginia; JOHN H. LOPEZ, in his of?cial capacity as a Commissioner of the County Commission of Fayette County, West Virginia Defendants Appellant's ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON MOTION FOR LEAVE TO FILE BRIEF ON BEHALF OF THE WEST VIRGINIA INDEPENDENT OIL AND GAS ASSOCIATION, INC. and. THE WEST VIRGINIA OIL AND NATURAL GAS ASSOCIATION, INC. AS AMIC US URIAE IN SUPPORT OF RESPONDENT EQT PRODUCTION COMPANY SEEKING AFFIRMANCE OF THE DISTRICT RULING Roger G. Hanshaw (WV Bar No. 11968) Bowles Rice LLP 600 Quarrier Street Charleston, West Virginia 25301 Telephone: (304) 347?21 15 Facsimile: (304) 343?2867 Email: rhanshaw@bowlesriee.com Appeal: 16-1938 Doc: 21-1 Filed: 11/14/2016 Pg: 3 of 5 Total Pages:(3 of 44) Pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure, the Independent Oil and Gas Association of West Virginia, Inc. and the West Virginia Oil and Natural Gas Association, Inc. respectfully request leave of this Court to ?le an amtcus curiae brief in support of the Respondent, EQT Production Company. IOGA and WVONGA are uniquely positioned to address the issue on appeal. For approximately 57 years, IOGA, a West Virginia trade association, has represented independent oil and gas producers and others directly involved in the production of West Virginia oil and natural gas. 610 businesses are vitally interested in issues affecting the West Virginia oil and gas industry, including the legal issue raised by this case. Similarly, WVONGA has represented the interests of oil and natural gas producers in West Virginia since 1915. WVONGA members account for approximately 80% of the oil and natural gas production in West Virginia and provide oil and gas product to over 300,000 homes and businesses in West Virginia. The issue in the instant case impacts not only the parties, but also oil and gas producers of all sizes throughout West Virginia. IOGA and WVONGA file this Motion For Leave To File Amtcus Curiae Brief In Support of EQT Production Company, after careful consideration and analysis of the signi?cant impact this case will have on the oil and natural gas industry. On behalf of their members, IOGA and WVONGA seek to ?le a brief as amicus curiae in support of the Respondent, EQT Production Company, because the ruling of the District Court for the Southern District of West Virginia has signi?cant implications upon existing, and future, oil and gas development in West Virginia. The West Virginia Legislature made the sound policy judgment that regulation of the oil and natural gas industry was exclusively the jurisdiction of the State of West Virginia and its Department of Environmental Protection. The District Court properly gave effect to this policy determination by ruling that the Appeal: 16-1938 Doc: 21-1 Filed: 11/14/2016 Pg: 4 of 5 Total Pages:(4 of 44) ordinance adopted by the County Commission of Fayette County, West Virginia was preempted by West Virginia state law. The judgment of the District Court should be af?rmed. For these reasons, and any other reasons apparent to the Court, the Independent Oil and Gas Association of West Virginia, Inc. and the West Virginia Oil and Natural Gas Association, Inc. respectfully request leave to file the attached brief as amicus curiae in support of EQT Production Company. WEST VIRGINIA INDEPENDENT OIL AND GAS ASSOCIATION, INC., and WEST VIRGINIA OIL AND NATURAL GAS ASSOCIATION, INC. Amicus Curiae By Counsel Roger G. Hanshaw Roger G. Hanshaw (WV Bar No. 11968) Bowles Rice LLP 600 Quarrier Street Charleston, West Virginia 25301 Telephone: (304) 347-21 15 Facsimile: (304) 343-2867 Email: rhanshaw@bowlesrice.com Appeal: 16-1938 Doc: 21-1 Filed: 11/14/2016 Pg: 5 of 5 Total Pages:(5 of 44) CERTIFICATE OF SERVICE I certify that on the 14th day of November 2016, the foregoing document was served on all parties or their counsel of record through the system and by depositing a true and exact copy in the United States Mail, ?rst class postage prepaid, to the following addresses: Timothy M. Miller Christopher B. Power Babst Calland Clements Zomnir, RC. 300 Summers Street, Suite 1000 Charleston, West Virginia 25301 Counsel for Appellee Derek 0. Teaney Appalachian Mountain Advocates, Inc. Post Of?ce Box 507 Lewisburg, West Virginia 25901 Counsel for Appellants Thomas A. Rist Humphrey Rist, LLP 103 Fayette Avenue Fayetteville, West Virginia 25840 Counsel for Appellants Roger G. Hanshaw Roger G. Hanshaw (W. Va. Bar No. 11968) Bowles Rice LLP 600 Quarrier Street Charleston, West Virginia 25301 Counsel for Amlcus Curiae West Virginia Independent Oil and Gas Association, Inc. and West Virginia Oil and Natural Gas Association, Inc. 85213051 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 1 of 39 Total Pages:(6 of 44) No.16?1938 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT EQT PRODUCTION COMPANY Plainti?r? Appellee VI MATTHEW D. WENDER, in his official capacity as President of the County Commission of Fayette County, West Virginia; DENISE A. SCHALPH, in her official capacity as a Commissioner of the County Commission of Fayette County, West Virginia; JOHN H. LOPEZ, in his official capacity as a Commissioner of the County Commission of Fayette County, West Virginia Defendants Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON BRIEF IN SUPPORT OF APPELLEE AND ON BEHALF OF THE WEST VIRGINIA INDEPENDENT OIL AND GAS ASSOCIATION, INC. and THE WEST VIRGINIA OIL AND NATURAL GAS ASSOCIATION, INC., as AMI US URIAE Roger G. Hanshaw (WV Bar No. 11968) BOWLES RICE LLP 600 Quarrier Street Charleston, West Virginia 25 3 01 Telephone: (3 04) 347?21 15 Facsimile: (304) 343?2867 Email: rhanshaw@bowlesrice.com Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 2 of 39 Total Pages:(7 of 44) UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be ?led on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post?conviction case and corporate amici curiae are required to ?le disclosure statements. If counsel is not a registered ECF ?ler and does not intend to ?le documents other than the required disclosure statement, counsel may ?le the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. No, 16?1938 Caption; EQT Production Company v. Matthew D. Wander et al. Pursuant to FRAP 26.1 and Local Rule 26.1, The West Virginia Independent Oil and Gas Association, Inc. and The West Virginia Oil and (name of party/amicus) Natural Gas Association, lnc._ who is amicus curiae makes the following disclosure: 1. Is party/amicus a publicly held corporation or other publicly held entity? I: YES NO 2. Does party/amicus have any parent corporations? I: YES NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES NO If yes, identify all such owners: 09/29/2016 soc - 1 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 3 of 39 Total Pages:(8 of 44) 4. Is there any other publicly held corporation or other publicly held entity that has a direct ?nancial interest in the outcome of the litigation (Local Rule YES NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) EYES El NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? YES NO If yes, identify any trustee and the members of any creditors? committee: Signature: R0991 G- HanShaw Date: November 14, 2016 Counsel for: Amicus Curiae IOGA and WVONGA CERTIFICATE OF SERVICE I certify that on November 14. 2015 the foregoing document was served on all parties or their counsel of record through the system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: Timothy M. Miller Derek 0. Teaney Christopher B. Power Appalachian Mountain Advocates, Inc. Babst Cailand Clements Zomnir, P.C. Post Office Box 507 300 Summers Street, Suite 1000 Lewisburg, West Virginia 25901 Charleston, West Virginia 25301 Thomas A. Rist Humphrey Rlst, LLP 103 Fayette Avenue Fayetteville, West Virginia 25840 Ea?g?aj November 14, 2016 (signature) (date) Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 4 Of 39 TABLE OF CONTENTS STATEMENT OF IDENTITY, INTEREST AND AUTHORITY OF Total Pages:(9 of 44) AMICUS CURIAE .. 1 STATEMENT OF AUTHORSHIP AND CONTRIBUTION .. 2 ARGUMENT .. 2 I. The natural gas industry makes a positive impact on West II. Virginia?s economy and must be allowed to continue operating as ef?ciently as possible. .. 2 It is imperative that a statewide system of uniform regulations is maintained to govern the oil and natural gas industry in West Virginia. Patchwork regulation will lead to inefficiency and loss of resources and revenue. .. 9 The District Court properly held that the Ordinance was preempted by applicable state law, and, even if it was not, the Ordinance is still unenforceable. .. 16 A. The Commission?s reliance on Sharon Steel is inappropriate in light of the legislature?s subsequent reorganization of environmental enforcement in West Virginia into a more centralized regulatory structure. .. 1. The Ordinance frustrates the purpose of West Virginia?s federally approved program for regulating and permitting underground injection disposal wells and creates a conflict between state and local law, which must be resolved in favor of the State .. ..19 ..l9 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 5 of 39 Total Pages:(10 of 44) 2. After Sharon Steel was decided, the West Virginia Legislature reorganized the statewide system of environmental enforcement and made the policy determination that protection of the environment was a function exclusively reserved for the State .. 21 B. The savings clauses from the West Virginia Water Pollution Control Act and the federal Safe Drinking Water Act do not confer any authority on the Commission, and the Commission lacks any inherent authority to adopt the Ordinance absent an express grant of authorityAppeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 6 of 39 Total Pages:(11 of 44) TABLE OF AUTHORITIES Cases American Tower Corp. v. Common Council of City of Beckley, 557 752 (W. Va. 2001) .. 20 Brackman ?s Inc. v. City of Huntington, 27 71 (W. Va. 1943) ..25 Butler v. Tucker, 416 262 (W. Va. 1991) .. 17 City ofFort Collins 12. Colorado Oil, 2016 CO 28,1137, 369 P.3d 586 (C010. 2016) ..17 Denver Rio Grande WRR. Co. v. City County of Denver, 673 P.2d 354 (C010. 1983) .. 16 Robinson Township v. Commonwealth of 83 A.3d 901 (Pa. 2013) .. 18 Sharon Steel 12. City of airmont, 334 616 (W. Va. 1985Commc?ns, Inc. v. City ofLongmont, 924 P.2d 1071 (C010. App. 1995) .. 16 Vector Co. v. Board of Zoning Appeals, 184 301 (W. Va. 1971) ..20 Voss v. Lundvall Bros, 830 P.2d 1061 (C010. 1992) .. 13 Statutes 42 U.S.C. 300f?300j?26 ..26 42 U.S.C. 300h?2(d) .. .. 26 W. Va. Code 7?1-3kk .. 27 W. Va. Code 11?13A?5a ..7, 14 W. Va. Code .. 23 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 7 of 39 Total Pages:(12 of 44) W. Va. Code .. 9 W. Va. Code .. 9 W. Va. Code 22-6?6 .. 12 W. Va. Code .. 12, 16 W. Va. Code .. 9 W. Va. Code .. 9 W. Va. Code 22-41?27 .. 25 Other Authorities 8?8, William Meyers, Oil anal Gas Law, Matthew Bender and Company, Inc. (2016) .. 11 American Petroleum Institute Standards, Am. Petroleum. Inst. 2 (2004), .. 1 1 American Petroleum Institute, Oil and Natural Gas Stimulate Economic and Job Growth in West Virginia, available online at gas?stimulate?american?j obs .. 5 Bureau of Bus. Econ. Research, W. Va. Univ. Coll. of Bus. Econ, 2016 West Virginia Economic Outlook, available at ://Www.be.wvu. edu/bber/econornic_outlook. ast .. 4 Bureau of Bus. Econ. Research, W. Va. Univ. Coll. of Bus. Econ, West Virginia Economic Outlook 2017?2021, available at .. 4 Colorado Oil and Gas Conservation Act, 34?60-101 to ~130, C.R.S. (2015) .. 17 Elkind, S. Preemption and Home Rule: be Power of Local Governments to Ban or Burden Hydraulic Fracturing. ll Tex. J. Oil Gas&Energy L415 (2016) ..18 iv Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 8 of 39 Total Pages:(13 of 44) ershee, JP, Facts, Fiction, and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth 116 W. Va. L. Rev. 819 (2014) .. 18 HIS Inc., ?America?s New Energy Future: The Unconventional Oil and Gas Revolution and the U.S. Economy,? Washington, DC, December 2012 .. 5 PriceWaterhouseCoopers, ?Economic Impacts of the Oil and Natural Gas Industry on the U.S. Economy in 2011,? Washington, DC, July 2013 .. 5 U.S. Census Bureau, American FactFinder, West Virginia, Table B25040, House Heating Fuel, 2010?14 American Community Survey 5?Year Estimate .. 3 U.S. Energy Information Administration, West Virginia State Pro?le and Energy Estimates, available at (last updated 7/21/2016) .. 3 West Virginia Center on Budget Policy, The State of Working West Virginia 2014, available at working?west?virginia?Z0 in-the?mountain-state/ .. 5 West Virginia Department of Revenue, Joint Select Committee on Tax Reform, Severance Taxes Property Taxes (September 14, 2015) .. 7 West Virginia Independent Oil and Gas Association, Natural Gas Facts, available at .. 3 333g Rule 29(a) of the Federal Rules of Appellate Procedure .. 2 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 9 of 39 Total Pages:(14 of 44) STATEMENT OF IDENTITY, INTEREST AND AUTHORITY OF AMI US URIAE The West Virginia Independent Oil and Gas Association, Inc. is a West Virginia non-pro?t corporation representing those persons, ?rms and entities engaged in the extraction and production of oil and natural gas in West Virginia and the companies and individuals that support the extractive industries. IOGA was formed in 1959 and, today, represents approximately 600 parties with a vital interest in oil and natural gas production in West Virginia. The primary purpose of IOGA is to educate its members and the public about the challenges and opportunities confronting the oil and natural gas industry, and to protect and improve the business environment in West Virginia. The West Virginia Oil and Natural Gas Association, Inc. is also a West Virginia non?pro?t corporation, whose members are? involved in the construction, environmental services, drilling completion, gathering, transportation, distribution and processing of oil and natural gas. WVONGA members account for approximately 80% of West Virginia?s oil and natural gas production. The District Court?s ruling in this case is proper and should be af?rmed. The District Court properly concluded West Virginia state law governing the extraction and production of oil and natural gas, and the law Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 10 of 39 Total Pages:(15 of 44) governing environmental enforcement, preempt local ordinances adopted by political subdivisions to restrict oil and gas development. IOGA and WVONGA file this brief in support of Appellee EQT Production Company pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF AUTHORSHIP AND CONTRIBUTION This brief was authored by Bowles Rice LLP, as counsel for IOGA and WVONGA in this case. All costs of ?ling this brief have been paid by IOGA and WVONGA, and no other party to this proceeding or such party?s counsel, or other person, has made a monetary contribution to fund the preparation or submission ofthis brief] ARGUMENT I. The natural gas industry makes a positive impact on West Virginia?s economy and must be allowed to continue operating as efficiently as possible. West Virginia is located in the leading natural gas?producing area in the United States. Because of new applications of hydraulic fracturing technology and horizontal drilling, producers are now able to extract natural gas from reserves that were previously not economically feasible. Advancements in drilling and 1 EQT Production Company is not a member of IOGA. EQT Production Company is a member of WVONGA and pays regular dues in connection with such membership. Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 11 of 39 Total Pages:(16 of 44) extraction technology have created substantial natural gas development in West Virginia. Currently, West Virginia is a net exporter of natural gas. In fact, oil or natural gas is produced in fifty?three (53) of West Virginia?s fifty-five (55) counties.2 West Virginia produces more than 1 trillion cubic feet of natural gas per year. Just 1 billion cubic feet of natural gas can provide electricity to 24,315 homes for an entire year. About two-fifths of West Virginia households use natural gas for home heating.3 West Virginia?s economy is highly dependent upon the energy sector. West Virginia ranked fourth among the states in total energy production in 2013, producing 4.6 percent of the nation?s total.4 West Virginia was the eighth largest natural gas?producing state in the nation in 2015, With more than 1.3 trillion cubic feet of natural gas production.5 Despite its impressive energy production, West Virginia?s economy is struggling. Total employment Within the state has declined for much of the last 2West Virginia Independent Oil and Gas Association, Natural Gas Facts, available at 3 U.S. Census Bureau, American FactFinder, West Virginia, Table B25040, House Heating Fuel, 2010-14 American Community Survey 5-Year Estimate. 4 U.S. Energy Information Administration, West Virginia State Profile and Energy Estimates, available at (last updated 7/21/2016). 5 Id. Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 12 of 39 Total Pages:(17 of 44) four (4) years, with a cumulative loss of around 17,000 jobs.6 The West Virginia University Bureau of Business and Economic Research attributed part of this struggle to a steep multi?year decline in West Virginia?s coal industry.7 The WVU BBER noted coal industry employment has plunged 35 percent between the fourth quarter of 2011 and the second quarter of 2015.8 Moreover, coal output has fallen by around one?third since 2008.9 However, West Virginia?s oil and natural gas industry continues to ?ourish and is driving other economic growth. The WVU BBER reported that West Virginia?s natural resources and mining sector, as a whole, is expected to see jobs increase at an average annual rate of 0.5 percent over the next ?ve (5) years.10 The oil and natural gas industry is expected to add jobs at a rate of 4.6 percent per year. 11 The number of jobs within the oil and natural gas industry has also experienced rapid growth. The West Virginia Center on Budget and Policy noted 6 Bureau of Bus. Econ. Research, W. Va. Univ. Coll. of Bus. Econ, West Virginia Economic Outlook 2017?2021, available at outloolcaspx. 7 Bureau of Bus. Econ. Research, W. Va. Univ. Coll. of Bus. Econ, 2016 West Virginia Economic Outlook, available See, supra, note 6, at 16. ?1 Id. Appeal: 16-1938 Doc: 21-2, Filed: 11/14/2016 Pg: 13 of 39 Total Pages:(18 of 44) in its 2014 report that employment in this industry?which includes extraction, support activities, distribution and pipeline construction and transportation?m consisted of 6,846 jobs in 2005.12 By 2013, employment grew to 12,092.13 The job total is expected to signi?cantly rise to 29,656 in 2020 and to 58,244 in 2035 .14 A study conducted by the American Petroleum Institute found that the oil and gas industry directly or indirectly supported 80,400 jobs in West Virginia in 2011,15 or 8.9 percent of West Virginia?s total employment.16 The amount of West Virginia labor income supported by the oil and gas industry equaled approximately $3.64 billion, or 8.8 percent of West Virginia?s total labor income.17 The recent job growth has also had a signi?cant impact on salaries. The average annual salary in West Virginia across all industries and sectors is $39,519, compared to an average oil and gas industry salary of $74,450.18 12 West Virginia Center on Budget Policy, The State of Working West Virginia 2014, available at . 13 Id. ?4 HIS Inc, ?America?s New Energy Future: The Unconventional Oil and Gas Revolution and the US. Economy,? Washington, DC, December 2012. ?5 Id. 16 PriceWaterhouseCoopers, ?Economic Impacts of the Oil and Natural Gas Industry on the US. Economy in 2011,? Washington, D.C., July 2013. l7 18 American Petroleum Institute, Oil and Natural Gas Stimulate Economic and Job Growth in West Virginia, available at Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 14 of 39 Total Pages:(19 of 44) The oil and gas industry maintains a positive impact on West Virginia?s real gross domestic product West Virginia experienced a steep decline in real GDP of 3.4 percent during 2012.19 However, real GDP expanded at rates of 0.3 and 2.4 percent during 2013 and 2014.20 Real GDP for West Virginia is expected to rise at an average annual rate of more than 1.5 percent through 2021.21 The oil and gas industry is expected to pace broader output growth, with an expected gain of nearly 5.3 percent per year during 2017 to 2021.22 Together, West Virginia?s coal and oil and gas industries account for nearly 15 percent of state GDP.23 Simply stated, growth in the natural gas industry is expected to help lift West Virginia?s energy sector and ?ll some of the gap created by the coal industry?s decline.24 Additionally, the growth of West Virginia?s oil and natural gas industry has generated signi?cant state and local government revenue. While actual production has not yet reached its projected peak level, the West Virginia State Tax Department reported that natural gas severance tax revenue to our state 19 See, supra, note 7, at 13. 20 Id. 2' See, supra, note 6, at 18. 22 Id. 231d. at 14. 24 Id. at 22. Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 15 of 39 Total Pages:(20 of 44) totaled approximately $204 million in 2014. 25 According to projections by the United States Department of Energy, by 2020, oil and natural gas production in the Marcellus Shale Region is expected to account for approximately $1.5 billion in payments to suppliers, $1.2 billion in royalties, $117 million in payroll, $697 million in state and local taxes, $872 million in total taxes, and 16,838 jobs.26 It will be very difficult to achieve the hoped?for levels of economic activity from natural gas if our courts create legal hurdles and impediments to development. Further, West Virginia law provides for the collection and distribution 7 of a severance tax on oil and gas.2 In 2014, more than $174 million was contributed to the state general revenue fund, and more than $13 million was 8 These tax revenues are distributed to county and municipal governments.2 benefitting communities across West Virginia by allowing the state and local governments to invest in schools and public safety. The county governments used some of this revenue to support ongoing government services (such as the county commission, county clerk and courthouse maintenance), While the municipalities 25 West Virginia Department of Revenue, Joint Select Committee on Tax Reform, Severance Taxes Property Taxes (September 14, 2015). 26 United States Department of Energy, Projecting the Economic Impact of Marcellus Shale Gas Development in West Virginia: A Preliminary Analysis Using Publicly Available Data, Final Report, March 31, 2010, available at (last accessed November 14, 2016.) 27 See W. Va. Code 11-13A?5a. 28 Id. Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 16 of 39 Total Pages:(21 of 44) used some of this revenue in a similar fashion and applied funds to public safety and road maintenance. The tax revenue generated by West Virginia?s oil and gas industry contributes to each county and municipality throughout West Virginia. Overall, the oil and gas industry supports $5.8 billion of the West Virginia economy?8.7 percent of West Virginia?s total economic activity.29 This support is expected to continue as West Virginia?s natural gas industry continues to grow. Natural gas production in West Virginia rose to 1.3 trillion cubic feet in 2015, a gain of 21 percent from 2014.30 Annual gas production is forecasted to increase roughly 9 to 10 percent annually.31 As discussed below, the West Virginia legislature anticipated this growth, and with its statewide regulatory structure, enacted legislation to ensure uniformity of regulation of the natural gas industry. This uniform approach is not simply a desire by the legislature to aggregate power in the hands of state regulatory agencies. Regulatory uniformity is critical for the efficient development of this important resource. 29 See, supra, note 16. 30 See, supra, note 6, at 22. 31 Id. at 23. Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 17 of 39 Total Pages:(22 of 44) II. It is imperative that a statewide system of uniform regulations is maintained to govern the oil and natural gas industry in West Virginia. Patchwork regulation will lead to inef?ciency and loss of resources and revenue. The Legislative purpose of the West Virginia Department of Environmental Protection is to provide a comprehensive program for the conservation, protection, exploration, development, enjoyment and use of the natural resources of the state of West Virginia.? W. Va. Code 22?1? The State intends to do so by ?consolidat[ing] environmental regulatory programs in a single state agency.? W. Va. Code Moreover, the Legislature found that ?[t]he advent and advancement of new and existing technologies and drilling practices have created the opportunity for the efficient development of natural gas contained in underground shales and other geologic formations.? W. Va. Code Finally, the Legislature found that ?responsible development of our state?s natural gas resources will enhance the economy of our state and the quality of life for our citizens while assuring the long term protection of the environment.? W. Va. Code As evidenced by legislative findings, the State has explicitly stated it has an interest in efficient and fair development, production and utilization of its underlying resources. Toward that and, the State has consolidated regulatory authority in a single state agency. The Wes Virginia Legislature has declared that Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 18 of 39 Total Pages:(23 of 44) promoting the efficient development of natural resources is the public policy of the State of West Virginia. In W. Va. Code the legislature declared that It is hereby declared to be the public policy of this state and in the public interest to: (1) (2) (3) (4) Foster, encourage and promote exploration for and development, production, utilization and conservation of oil and gas resources; Prohibit waste of oil and gas resources and unnecessary surface loss of oil and gas and their constituents; Encourage the maximum recovery of oil and gas; and Safeguard, protect and enforce the correlative rights of operators and royalty owners in a pool of oil or gas to the end that each such operator and royalty owner may obtain his just and equitable share of production from such pool of oil or gas.? The State?s interest in the efficient development and production of its resources, however, is frustrated to the extent the laws and regulations governing the oil and gas industry lack uniformity at the county level. Patchwork regulation of the oil and gas industry at the local level is contrary to the public policy of the State of West Virginia. Given the breadth and expansiveness of state?level regulation pertaining to oil and gas, subdivisions of the State clearly do not have autonomy to regulate the oil and gas industry as it sees fit. Oil and gas development does, and 10 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 19 of 39 Total Pages:(24 of 44) has always resulted in produced water. Some formations naturally produce non- potable water and fracturing was used injected water or another substance for many years. Reinjection of water from oil and gas wells is necessary to have an oil and gas industry and protect the environment. 32 Widespread county?level regulation will produce a maze of varying and potentially inconsistent regulations which will impede the State?s interest in the ef?cient production of oil and gas. The local ordinance adopted by the County Commission of Fayette County, West Virginia and later amended by the County Commission on March 25, 2016, (the ?Ordinance?) places a categorical ban on the operation of injection disposal wells in Fayette County, while state law authorized those wells. The extraterritorial impact of the Ordinance lies in the ?patchwork? and confusion resulting from a variety of con?icting local regulations. Moreover, a patchwork of de facto oil and gas regulations creates inconsistency, which ultimately increases the risk of operations.33 The overarching interest of the State is to promote the development, production and utilization of its natural resources, consistent with the protection of 32 For a discussion of the production of water with oil and gas extraction, see 8?8, William Meyers, Oil and Gas Law, Matthew Bender and Company, Inc. (2016). 33 See, raga, American Petroleum Institute Standards, Am. Petroleum Inst. 2 (2004), available at /FAQ/valueofstandards.pdf, noting that uniform ?[sltandards enhance the safety of industry operations, assure quality, help keep costs down, reduce waste, and. minimize confusion.? by ensuring operations meet industry 11 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 20 of 39 Total Pages:(25 of 44) public health, safety, and welfare. See W. Va. Code 22?1?1; W. Va. Code 22- To advance its interests, the State has codi?ed a comprehensive legislative scheme aimed at governing all aspects of oil and gas development. These statutes and regulations include, among others, permitting, drilling, production, spacing, unitization, chemical treatment of wells, and setback requirements. The State?s statutes and regulations also address environmental concerns relating to air, water and soil. As illustrated by the examples below, lack of regulatory uniformity substantially impedes the State?s interest in promoting the efficient production of oil and gas. As the Ordinance stands now, the disposal, storage or handling of any wastewater from oil and gas operations is prohibited within the con?nes of Fayette County. The Ordinance was later amended to clarify that it would not apply to the ?temporary storage, handling, treatment, or processing? of wastewater on the well site. Notably, however, this exemption only applies to conventional, vertical production wells permitted under West Virginia Code ?22?6-6. As such, the Ordinance still prohibits the disposal, storage or handling of any wastewater on horizontal well predominate method of drilling used in the development of shale gas wells. 12 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 21 of 39 Total Pages:(26 of 44) The effect of the Ordinance is to prohibit all oil and gas development and operations within Fayette County. The court in Voss was correct in noting oil and gas is captured from subterranean wells, the boundaries of which do not conform to arti?cially drawn political subdivisions. Voss v. Lundvall Bros, 830 P.2d 1061, 1067 (Colo. 1992). Because producers will be prohibited from temporarily storing wastewater on horizontal drill sites within Fayette County, producers may be compelled to situate their well pads in adjacent counties. The lateral portions of horizontal wells are limited in length, so that most of the shale gas in Fayette County will not be developable. Because oil and gas production is closely tied to well location, Fayette County?s effective ban will result in uneven and potentially wasteful production of oil and gas from pools which underlie the county but extend beyond its borders. As such, a producer?s drilling patterns will be dictated by local ordinance, rather than best-industry practice. Because oil and gas pools do not conform to the boundaries of political subdivisions, Fayette County?s effective ban on drilling operations within its borders substantially impedes the interest of the State in promoting the efficient development and production of resources in a manner that prevents waste. Moreover, West Virginia law provides for the collection and distribution of a severance tax on oil and gas. Ten percent of the oil and gas severance tax collected in West Virginia is dedicated for the use and benefit of the 13 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 22 of 39 Total Pages:(27 of 44) counties and municipalities within West Virginia.34 To distribute the oil and gas severance tax, a fund was established in the State Treasurer?s Office. The portion of the oil and gas severance tax revenue paid to the counties and municipalities is then distributed annually to the counties and municipalities as provided in W. Va. Code ll?l3A?5a. Seventy-?ve percent is distributed to oil and gas producing counties. The remaining 25 percent is distributed to all counties and municipalities, based on population. Under the State?s severance tax scheme, the State distributes 25 percent of the proceeds uniformly across all 55 counties. The uniform distributions demonstrate the State?s intent to maintain uniform state governance of the oil and gas industry. Because the legislature has chosen to allocate a portion of oil and gas severance taxes to counties irrespective of oil and gas production, it is clear that the State is promoting the development of its resources for the good of the State as a whole. Allowing counties to impose regulations inconsistent with state interests will undermine such efforts. Allowing individual counties to impose moratoriums on oil and gas activities will not only reduce revenue to the State as a whole, but it will also lessen the severance distributions to counties other than Fayette. The Ordinance has significant extraterritorial effects that impede the flow of industry commerce. For example, the Ordinance states that ?[t]he sale, 34 W. Va. Code ll-lBA?Sa. l4 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 23 of 39 Total Pages:(28 of 44) acquisition, storage, handling, treatment and/or processing of natural gas waste or oil waste within Fayette County is prohibited.? Under the Ordinance, transportation of such wastewater across county roads is prohibited. To avoid criminal prosecution, producers from across the State will be required to transport their wastewater around county lines, thereby imposing additional costs. To the extent other counties impose similar bans, oil and gas producers may be without reasonable means of wastewater disposal. Onerous restrictions on wastewater would be substantial due to the sheer volume of wastewater produced during the production process. Therefore, the Ordinance, and the possibility of more like it, impedes the State?s interest in promoting the production of oil and gas. Producers are not the only ones affected by the Ordinance. The Ordinance imposes additional costs on individuals situated outside of Fayette County. As discussed above, the Ordinance will impose additional costs on the oil and gas producers operating in and around Fayette County. To the extent a producer is able to drill a vertical well and produce wastewater without penalty, it is still responsible for transporting the wastewater out of Fayette County. This will undoubtedly create additional expenses, which will likely be incorporated into the price of the end product. The end product?oil and natural gas?wis then sold to 15 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 24 of 39 Total Pages:(29 of 44) customers outside of Fayette County at an increased price. In the event more counties follow suit, the regional price of oil and gas will increase. Courts have found impermissible extraterritorial impact where regulations impose a cost on a business Within the county, which the business may in turn pass on to its customers outside that county.35 As evidenced by the dictates of West Virginia Code 22?1-1 and West Virginia Code the State has an interest in promoting the efficient development of its resources. These efforts, however, are signi?cantly undermined if there is a lack of uniform regulations among the counties. Lack of uniformity at the county level will result in the inefficient development of State resources and will impose additional costs on neighboring counties, citizens of the State, and producers of oil and gas. The District Court properly held that the Ordinance was preempted by applicable state law, and, even if it was not, the Ordinance is still unenforceable. The Ordinance is an impermissible incursion by the Commission into the exclusive jurisdiction of the State of West Virginia to regulate matters related 35 See Denver Rio Grande WRR. Co. v. City County ofDenver, 673 P.2d 354, 358? 59 (Colo. 1983) (imposing cost of rebuilding viaduct in Denver on railroad may cause railroad to reduce or terminate service to people outside Denver); but See US. W. Comma ?ns, Inc. v. City of Longmont, 924 P.2d 1071, 1079 (Colo. App. 1995) (finding company?s argument that home rule imposition of cost will require it to raise rates statewide is outweighed by local government?s interest in regulating). 16 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 25 of 39 Total Pages:(30 of 44) to the exploration and production of oil and natural gas. The legislature exercised its plenary powers to occupy the entire ?eld of environmental regulation, and the Commission may not adopt a local ordinance which has the effect of usurping the sound policy decision made by the legislature of centralizing all environmental regulation in the West Virginia Department of Environmental Protection.36 Such local ordinances, if adopted at all, are unenforceable. Syl. Pt. 3, Butler 12. ticker, 416 262 (W. Va. 1991) (?The county court [commission] is a corporation created by statute, and can only do such things as are authorized by law, and in the mode prescribed.? (internal citations omitted)).37 Oil and natural gas production does not, and cannot, occur neatly along county and municipal political boundaries. By its very nature, oil and gas production is multi?jurisdictional, and the shale and other geological formations 36 For a similar example of how the regulation of oil and natural gas is approached in other hydrocarbon-producing regions of the nation, see City of Fort Collins v. Colorado Oil, 2016 CO 28, ?ll 37, 369 P.3d 586 (Colo. 2016), where the Supreme Court of Colorado held that a local ordinance, adopted to place a five (5)?year moratorium on the use of hydraulic fracturing in the oil and natural gas industry, was invalid because the State of Colorado had occupied the entire ?eld of oil and natural gas regulation by adoption of the Colorado Oil and Gas Conservation Act, 34?60?101 to -l30, C.R.S. (2015). Colorado?s oil and gas statutes parallel West Virginia?s oil and gas statutes in many respects. 37 The West Virginia Legislature recognized the critical importance of statewide regulation of the oil and natural gas industry in 2011 when it passed the West Virginia Horizontal Well Act, codi?ed at W. Va. Code 22~6A~l ei seq. This Act incorporated existing oil and gas provisions and added new law speci?cally addressing horizontal wells. Incorporation of existing statutes by reference was used extensively. The comprehensive nature of this Act, coupled with the signi?cant body of prior existing law regulating oil and gas activities in West Virginia at the state level, makes it clear that the legislature intended to regulate the entire industry. 17 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 26 of 39 Total Pages:(31 of 44) from which oil and gas are harvested follow geological boundaries, not political boundaries. Over the past two decades, West Virginia has begun to learn what other oil and natural gas?producing states with longer histories in the industry have known for decades?effective and sensible regulation of this industry requires a statewide approach.38 Patchwork regulation of the oil and natural gas industry not only leads to ineffective environmental enforcement, but it inhibits development of a valuable natural resource and deprives landowners, municipalities and state and . local governments of needed monetary benefits.39 38 Perhaps the most noteworthy illustration of this point grows out of recent attempts by local governments to enact regulations directed toward the elimination of hydraulic fracturing in the natural gas industry. These ordinances have been almost uniformly rejected by reviewing courts as preempted by state law. For a review of the legal and regulatory issues which arise out of attempts by municipalities and other political subdivisions of state government to interfere with statewide programs for environmental regulation, see Elkind, S. Preemption and Home Rule: The Power of Local Governments to Ban or Burden Hydraulic Fracturing, 11 Tex. J. Oil Gas Energy L. 415 (2016). 39 Courts across the nation have almost uniformly rejected attempts by political subdivisions to enact environmental regulations designed to specifically target one industrial sector to the point of a categorical ban. One notable case addressing local regulation of oil and gas activities is Robinson Township v. Commonwealth of 83 A.3d 901 (Pa. 2013). In this case the Supreme Court of found that certain portions of a statute designed to prohibit political subdivisions from enacting laws banning hydraulic fracturing were contrary to the State Constitution. Importantly, this case was decided not on a preemption analysis, but on other provisions of the state constitution. Accordingly, Robinson Township is inapplicable to an analysis of state preemption of environmental regulation. For a thorough review of Robinson Township and a discussion, see Fershee, .P., Facts, Fiction, and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township 12. Commonwealth of 116 W. Va. L. Rev. 819 (2014). 18 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 27 of 39 Total Pages:(32 of 44) A. The Commission?s reliance on Sharon Steel is inappropriate in light of the legislature?s subsequent reorganization of environmental enforcement in West Virginia into a more centralized regulatory structure. The Commission argues that Sharon Steel 12. City of Fairmont, 334 616 (W. Va. 1985), stands for the'proposition that the Commission may enact the Ordinance because it is a penal ordinance designed to codify the common law of nuisance.40 This contention both impermissibly expands the holding of Sharon Steel and ignores a critically important act of the West Virginia Legislature taken after Sharon Steel was decided. 1. The Ordinance frustrates the purpose of West Virginia?s federally approved program for regulating and permitting underground injection disposal wells and creates a con?ict between state and local law, which must be resolved in favor of the State. According to the Commission, the Ordinance is a valid exercise of the Commission?s authority to abate a public nuisance because (1) there was no con?ict between the ordinance and federal and state laws at issue, and (2) savings clauses in the federal and state statutes allegedly authorize the Commission to adopt such an ordinance.41 Neither is correct. The West Virginia Department of Environmental Protection is authorized to administer a federally approved program?Underground Injection Control Program permitting and 4O Appellant?s Brief at 44. 4? Id. 19 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 28 of 39 Total Pages:(33 of 44) regulating underground injection disposal (UIC) wells. Both the federal program and West Virginia?s federally approved state program for regulating UIC wells pre?suppose that such wells are authorized to exist, and by categorically prohibiting the location and operation of UIC wells in Fayette County, the Commission has erected a barrier to the proper exercise of the state?s authority to permit UIC wells under its federally approved regulatory program. Such a roadblock creates a conflict between the Ordinance and the proper exercise of the state?s plenary powers to permit UIC wells throughout West Virginia. When local ordinances come into conflict with the state?s plenary powers, the local ordinances?and not the state??must yield. As the West Virginia Supreme Court held in Syllabus Point 2 of American Tower Corp. v. Common Council of City of Beckley, 557 752 (W. Va. 2001), ?[w]hen a provision of a municipal ordinance is inconsistent or in con?ict with a statute enacted by the Legislature the statute prevails and the municipal ordinance is of no force and effect.? (quoting Syl. Pt. 1, Vector Co. v. Board ononz'ng Appeals, 184 301 (W. Va. 1971)). Note that the court in American Tower Corp. did not require that a local ordinance be wholly in con?ict with a state statute to be invalid. The court held that the local ordinance was preempted even where it was inconsistent with the state statute. Here, the Commission?s Ordinance is clearly inconsistent with the State?s federally approved regulatory program for UIC wells. If left to stand, the 20 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 29 of 39 Total Pages:(34 of 44) Ordinance would frustrate the State?s permitting program and prevent these who hold an otherwise valid license from the State of West Virginia from operating a UIC well in Fayette County. The Sharon Steel court did not intend to grant political subdivisions the power to frustrate an entire statutorily created state regulatory program by authorizing the adoption of local ordinances speci?cally crafted to negate the authority of the State. 2. After Sharon Steel was decided, the West Virginia Legislature reorganized the statewide system of environmental enforcement and made the policy determination that protection of the environment was a function exclusively reserved for the State. Sharon Steel was decided in 1985. In 1994, the West Virginia Legislature adopted House Bill 4065, a major reorganization of West Virginia?s environmental regulatory and enforcement programs. House Bill 4065 was approved by the Governor of West Virginia and became law on March 30, 1994. Among the provisions of House Bill 4065 was the enactment of a policy statement outlining West Virginia?s approach to environmental management. House Bill 4065 amended the West Virginia Code by creating a new provision, including a legislative declaration of policy, West Virginia Code 22?1-1 et seq. This provision of West Virginia Code provides that 21 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 30 of 39 The Legislature finds that: (1) Restoring and protecting the environment is fundamental to the health and welfare of individual citizens, and our government has a duty to provide and maintain a healthful environment for our citizens. (2) The state has the primary responsibility for protecting the environment; other governmental entities, public and private organization and our citizens have the primary responsibility of supporting the state in its role as protector of the environment. (4) Efficiency in the wise use, enhancement, preservation, protection and conservation of the environment can best be accomplished by an integrated and interdisciplinary approach in decision making and would bene?t from the coordination, consolidation and integration of state programs and agencies which are signi?cantly concerned with the use, enhancement, preservation, protection and conservation of the environment. (5) Those functions of government which regulate the environment should be consolidated in order to accomplish the purposes set forth in this article, to carry out the environmental functions of government in the most efficient and cost effective manner, to protect human health and safety and, to the greatest degree practicable, to prevent injury to plant, animal and aquatic life, improve and maintain the quality of life of our citizens, and promote economic development consistent with environmental goals and standards. (emphasis added) Total Pages:(35 of 44) This broad policy statement clearly evidences the fact that the West Virginia Legislature intended to make environmental regulation and enforcement a 22 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 31 of 39 Total Pages:(36 of 44) matter of state?and not local?jurisdiction. To be even more clear, the legislature continued by clarifying the purpose of its action in West Virginia Code 22ml? which provides that The legislature declares that the establishment of a department of environmental protection is in the public interest and will promote the general welfare of the state of West Virginia without sacri?cing social and economic development. It is the policy of the state of West Virginia, in cooperation with other governmental agencies, public and private organizations, and the citizens of this state, to use all practicable means and measures to prevent or eliminate harm to the environment and biosphere, to create and maintain conditions under which man and nature can exist in productive harmony, and ful?ll the social, economic and other requirements of present and future generations. The purposes of this chapter are: (1) To strengthen the commitment of this state to restore, maintain and protect the environment; (2) 0 consolidate environmental regulatory programs in a single state agency; (3) 0 provide a comprehensive program for the conservation, protection, exploration, development, enjoyment and use of the natural resources of the state of West Virginia; (6) To encourage the increased involvement of all citizens in the development and execution of state environmental programs; (7) To promote improvements in the quality of the environment through research, evaluation and sharing of information; 23 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 32 of 39 Total Pages:(37 of 44) (8) To improve the management and effectiveness of state environmental protection programs; (9) To increase the accountability of state environmental protection programs to the governor, the Legislature and the public generally; and (10) To promote pollution prevention by encouraging reduction or elimination of pollutants at the source through process modi?cation, material substitutions, in? process recycling, reduction of raw material use or other source reduction opportunities. (emphasis added) These provisions, adopted after the decision in Sharon Steel, eliminate any doubt as to the public policy of the State of West Virginia.42 Environmental regulation and enforcement is vested in the State, not its political subdivisions.43 To the extent the powers granted to local governments in West Virginia allow those entities to adopt ordinances at all, those ordinances must not con?ict with, or inhibit the purpose and operation of, laws adopted by the legislature. Any uncertainty over the extent to which Sharon Steel authorized political subdivisions to enact environmental regulations in West Virginia was eliminated by the adoption of House Bill 4065 by the West Virginia Legislature in 1994. Unless 4?2 Unlike the United States Congress or state legislatures in selected other states, it is not the practice of the West Virginia Legislature to maintain a detailed legislative history of bills and other acts of the legislature. Instead, the West Virginia Legislature, with great regularity, inserts its ?ndings and other policy determinations into the text of a statute itself. These policy determinations are adopted by a vote of the full legislature and are fully the work product of the entire legislative branch of state government. 43 See W. Va. Code 22?1?1, et seq, discussed herein, for the statement of policy by the West Virginia Legislature that environmental regulation is a matter of state concern. 24 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 33 of 39 Total Pages:(38 of 44) speci?cally authorized by the legislature, county commissions simply do not have the authority to enact local laws like the Ordinance. B. The savings clauses from the West Virginia Water Pollution Control Act and the federal Safe Drinking Water Act do not confer any authority on the Commission, and the Commission lacks any inherent authority to adopt the Ordinance absent an express grant of authority. The Commission relies on the savings clauses included in the federal Safe Drinking Water Act and the West Virginia Water Pollution Control Act as support for its alleged authority to enact the Ordinance. While both provisions do relate to the authority of a political subdivision to enact local laws related to the environment, the Commission?s reading of each savings clause omits a critical element of West Virginia law?West Virginia political subdivisions, including the Commission, have only the authority conferred on them by the legislature. They have no inherent authority to be saved by a savings clause.44 These savings clauses only preserve existing authority. They do not create any new rights. Consider the savings clause in the West Virginia Water Pollution Control Act. West Virginia Code 22?11?27 provides that: 44 See Syllabus Point 1 of Brackmarz?s Inc. v. City of Huntington, 27 71 (W. Va. 1943), stating municipal corporation is a creature of the State, and can only perform such functions of government as may have been conferred by the Constitution, or delegated to it by the law-making authority of the State. It has no inherent powers, and only such implied powers as are necessary to carry into effect those expressly granted.? (emphasis added). 25 Appeal: 16-1938 similar language. Doc: 21-2 Filed: 11/14/2016 Pg: 34 of 39 is the purpose of this article to provide additional and cumulative remedies to abate the pollution of the waters of the state and nothing herein contained shall abridge or alter rights of action or remedies now or hereafter existing, nor shall any provisions in this article, or any act done by virtue of this article, be construed as estopping the state, municipalities, public health of?cers, or persons as riparian owners or otherwise, in the exercise of their rights to suppress nuisances or to abate any pollution now or hereafter existing, or to recover damages.? Total Pages:(39 of 44) The savings clause in the federal Safe Drinking Water Act contains provides that ?[n]othing in this subchapter [42 U.S.C. 300f-300j?26] shall diminish any authority of a State or political subdivision to adopt or enforce any law or regulation respecting underground injection but no such law or regulation shall relieve any person of any requirement otherwise applicable under this subchapter.? This savings clause is found at 42 U.S.C. and Central to a proper understanding of both savings clauses is a proper understanding of the role of political subdivisions in the State of West Virginia. County commissions are creatures of statute established by the legislature.45 They have no inherent authority and can exercise no power unless and until the legislature authorizes them to do so. 45 Id. 26 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 35 of 39 Total Pages:(40 of 44) First consider the savings clause from the West Virginia Water Pollution Control Act. This clause provides that the Act shall not ?alter rights of action or remedies now or hereafter existing.? This clause is not a grant of any authority to a political subdivision. It is simply a preservation of the authority that existed prior to the adoption of the Act. Moreover, the Act continues by saying that it may not be construed as estopping political subdivisions ?in the exercise of- their rights to suppress nuisances or to abate any pollution now or hereafter existing, or to recover damages.? Our State has not declared oil and gas production and injection to be a nuisance?to the contrary it has specifically authorized and encouraged them. Again, West Virginia political subdivisions have no inherent authority to suppress nuisances or abate pollution. Such authority, to the extent it exists at all, must be speci?cally conferred by the legislature.46 Next, consider the savings clause from the federal Safe Drinking Water Act. Like the savings clause in the West Virginia Water Pollution Control Act, the savings clause in the Safe Drinking Water Act merely provides that the Act shall not ?diminish any authority of a State or political subdivision? to enact 46 The brief of Appellee, EQT Production Company, correctly notes that West Virginia Code 7?1?3le authorizes county commissions to abate those conditions which have been determined, either by the courts or by the state, to constitute a nuisance. West Virginia Code 7-1?3kk does not empower political subdivisions to make ?ndings as to what legally constitutes a nuisance. 27 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 36 of 39 Total Pages:(41 of 44) ordinances. Again, the Commission, like every other West Virginia political subdivision, has no such authority unless speci?cally conferred by the legislature. Both savings clauses are simply inapplicable to the analysis of state and federal preemption of the Ordinance. Neither savings clause authorizes the Commission to adopt ordinances of any kind, and the legislature has reserved to the State the right to regulate our environment. The Commission simply has no authority to enact the Ordinance. CONCLUSION The District Court correctly concluded that West Virginia law aggregates all authority for regulation of environmental matters into the West Virginia Department of Environmental Protection, and that local ordinances intended to regulate the oil and natural gas industry are preempted by state law. The West Virginia Legislature decided that, as a matter of public policy, oil and natural gas production must, by necessity, be regulated on a statewide basis. West Virginia public policy favors the statewide approach to oil and natural gas regulation adopted by the legislature, and this public policy is manifested in the comprehensive regulatory scheme enacted by the legislature. West Virginia state law preempts local ordinances in the ?eld of oil and gas regulation. The District Court properly recognized this preemption. The ruling of the District Court should be affirmed. 28 Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 37 of 39 Total Pages:(42 of 44) WEST VIRGINIA INDEPENDENT OIL AND GAS ASSOCIATION, INC., and WEST VIRGINIA OIL AND NATURAL GAS ASSOCIATION, INC. Amicus Curiae By Counsel Roger G. Hanshaw Roger G. Hanshaw (WV Bar No. 11968) BOWLES RICE LLP 600 Quarrier Street Charleston, West Virginia 253 01 Telephone: (304) 347~2115 Facsimile: (304) 343?2867 Email: rhanshaw@bowlesrice.com 29 Appeal: 16-1938 No. Doc: 21-2 Filed: 11/14/2016 Pg: 38 of 39 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Briefing Orders issued before 12/01/2016 1651938 Caption: EQT Production Company v. Matthew D. Wander at al. CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a) Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. Type-Volume Limitation: Appellant?s Opening Brief, Appellee?s Response Brief, and Appellant?s Response/Reply Brief may not exceed 14,000 words or 1,300 lines. Appellee?s Opening/Response Brief may not exceed 16,500 words or 1,500 lines. Any Reply or Amicus Brief may not exceed 7,000 words or 650 lines. Counsel may rely on the word or line count of the word processing program used to prepare the document. The word-processing program must be set to include footnotes in the count. Line count is used only with monospaced type. This brief complies with the because: type-volume limitation of Fed. R. App. P. or this brief contains 55,689 [state number of] words, excluding the parts of the brief exempted by Fed. R. App. P. or this brief uses a monospaced typeface and contains [state number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 2. Typeface and Type Style Requirements: A proportionally, spaced typeface (such as Times (8) New Roman) must include serifs and must be 14*point or larger. A monospaced typeface (such as Courier New) must be 12?point or larger (at least 101/2 characters per inch). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using [identify word processing program] in [ident?i?/ font Size and type style]; or this brief has been prepared in a monospaced typeface using [identify word processing program] in [identi?fom size and type style]. Roger G. Hanshaw Attorney for Amicus Curiae IOGA WVONGA Dated; November 14,2016 04/13/2012 SCC Total Pages:(43 of 44) Appeal: 16-1938 Doc: 21-2 Filed: 11/14/2016 Pg: 39 of 39 Total Pages:(44 of 44) CERTIFICATE OF SERVICE I certify that on the 14th day of November 2016, the foregoing document was ?led with the Clerk of the Court using the system which will send noti?cation of such tiling to the following: Timothy M. Miller Christopher B. Power Babst Calland Clements Zomnir, RC. 300 Summers Street, Suite 1000 Charleston, West Virginia 25301 Counsel for Appellee Derek 0. Teaney Appalachian Mountain Advocates, Inc. Post Of?ce Box 507 Lewisburg, West Virginia 25901 Counsel for Appellants Thomas A. Rist Humphrey Rist, LLP 103 Fayette Avenue Fayetteville, West Virginia 25840 Counsel for Appellants Roger G. Hanshaw BOWLES RICE LLP 600 Quarrier Street Charleston, West Virginia 253 01 Counsel for Amicus Curiae West Virginia Independent Oil and Gas Association, Inc. and West Virginia Oil and Natural Gas Association, Inc.