Keith Hall
Professor, LSU Law
The City of Weirton, West Virginia adopted a zoning ordinance that prohibits oil and gas drilling within the City, except in areas zoned as “industrial,” unless the person who wishes to drill obtains a conditional use permit from the City’s Board of Zoning Appeals (BZA). City of Weirton v. SWN Production Co., 931 S.E.2d 825 (W. Va. 2026).[1]
SWN holds an oil and gas lease covering a 301-acre tract that is within the City of Weirton. The tract is not in an area zoned as “industrial,” so SWN applied to the BZA for a conditional use permit. The BZA held two hearings on the application, then denied the application in a written decision issued in early October 2021.
Later that month, SWN filed an application with West Virginia’s Department of Environmental Protection (DEP) for a permit to drill a horizontal well from a surface location on the 301-acre tract. In late October 2021, while the application for a drilling permit was pending, SWN filed two actions in the Circuit for Brooke County, West Virginia. In one of the actions, SWN sought a declaratory judgment that the City of Weirton’s zoning ordinance was preempted by state oil and gas statutes. The other action was a petition for a writ of certiorari, seeking a reversal of the BZA’s denial of SWN’s request for a conditional use permit. Under West Virginia law, a decision of a board of zoning appeals is subject to review by filing a petition for a writ of certiorari in the local circuit court. See W. Va. Code § 8A-9-1. The circuit court consolidated the two actions and stayed any ruling on the writ application until after it made a decision on the declaratory judgment action.
Before the circuit court made any decision on the merits, the DEP granted SWN’s application for a permit to drill and SWN amended its petition to note that the DEP had granted the permit. In the circuit court, SWN then argued that West Virginia’s Oil and Gas Act (W. Va. Code §§ 22-6-1 through 22-6-41) and the state’s Natural Gas Horizontal Well Control Act (W. Va. Code §§ 22-6A-1 through 22-6A-24) give the DEP the exclusive authority to regulate the location of drilling, and that this grant of exclusive authority prohibits municipalities from regulating the location of drilling. The City disputed SWN’s argument. The City noted that a separate West Virginia statutory scheme, the Land Use Planning Act (W. Va. Code §§ 8A-1-1 through 8A-13-4), gives municipalities the authority to enact ordinances to regulate land use, and that nothing in the Oil and Gas Act or the Natural Gas Horizontal Control Act expressly prohibits municipalities from applying zoning ordinances to oil and gas drilling.
In August 2022, the circuit court rejected SWN’s request for a declaratory judgment, concluding that neither the Oil and Gas Act nor the Horizontal Well Control Act preempt the application of local zoning ordinances to oil and gas drilling. About a year later, in August 2023, the circuit court denied SWN’s writ application, stating that the record contained evidence supporting the BZA’s decision denying SWN’s request for a conditional use permit. SWN timely filed separate appeals of the circuit court’s two rulings.
In late 2023, West Virginia’s intermediate court of appeals reversed the circuit court’s decision dismissing SWN’s action for a declaratory judgment. The appellate court concluded that the provision in the City’s zoning ordinance that regulates oil and gas drilling is in direct conflict with West Virginia’s oil and gas statutes. Therefore, the provision was preempted. In support of its decision, the court noted that the Horizontal Well Control Act contains language stating that the DEP has “sole and exclusive authority to regulate the … location … of oil and gas wells and production operations within the state.” See 895 S.E.2d at 233, 236 (quoting W. Va. Code § 22-6A-6(b)). In a separate decision, the intermediate court of appeals dismissed SWN’s other appeal, concluding that the court lacked jurisdiction to consider an appeal of a circuit court decision denying a writ of certiorari.
The City appealed, to West Virginia’s Supreme Court of Appeals, the intermediate appellate court’s decision that the zoning ordinance is preempted, and SWN appealed the intermediate appellate court’s decision that it lacked jurisdiction to consider the circuit court’s denial of SWN’s writ application.
The Supreme Court of Appeals acknowledged that the Horizontal Well Control Act states that the DEP has “exclusive authority” over the location of oil and gas wells, but the Court concluded that this does not require “wholesale” preemption of the City’s application of its zoning ordinance to oil and gas drilling. The Court suggested that a municipality could not completely prohibit oil and gas drilling, but the City’s zoning ordinance did not do this. Further, the Court held that the Horizontal Well Control Act does not preempt the City’s prohibition of oil and gas drilling, except in areas zoned as industrial or, in other areas, after the acquisition of a conditional use permit. Finally, the Horizontal Well Control Act did not prohibit the BZA from denying SWN’s application for a conditional use permit. Accordingly, the Supreme Court of Appeals reversed the intermediate appellate court’s ruling that the zoning ordinance was preempted.
The Court then upheld the intermediate appellate court’s decision that it lacked jurisdiction to consider the circuit court’s decision denying the writ application by which SWN sought reversal of the BZA’s denial of a conditional use permit. The Supreme Court of Appeals explained that the Land Use Planning Act does not authorize the appeal of a decision by a board of zoning appeals to the intermediate appellate court. The Court also noted that a writ of certiorari is an extraordinary remedy and that the statute governing the intermediate appellate court’s jurisdiction had been amended to clarify that the court’s jurisdiction does not extend to judgments involving extraordinary remedies.
[1] The zoning ordinance is also discussed in the decision from the intermediate court of appeals. See SWN Production Co., LLC v. City of Weirton, 895 S.E.2d 227 (W. Va. App. 2023).