Can a Virginia county use its zoning power to ban oil and gas drilling, including fracking, within its borders?

Plain-English summary

In 2010 and 2011, the Virginia Gas and Oil Board approved several 160-acre drilling units in Washington County for natural gas extraction. A gas operator asked the Washington County Zoning Administrator to confirm that a gas well qualified as an "approved accessory use" under the county's A-1 (agricultural limited) and A-2 (agricultural general) zoning categories. The Zoning Administrator denied the request; the Board of Zoning Appeals affirmed. On February 28, 2012, the Board of Supervisors voted 4-3 to "delay action to amend the County Zoning Ordinance to allow for natural gas extraction until after the EPA publishes its report on the public safety issues associated with hydro-fracturing." Delegate Terry Kilgore asked the AG whether a Virginia locality has authority to ban oil and gas drilling outright through its zoning laws.

The AG said no. Virginia is a Dillon Rule state: localities have only powers expressly granted, necessarily implied, or essential to operations. The General Assembly has granted zoning power, but no statute expressly authorizes localities to ban oil and gas drilling. The Virginia Gas and Oil Act and the Commonwealth Energy Policy together establish a comprehensive state regulatory regime aimed at, among other things, "fostering, encouraging and promoting the safe and efficient exploration for and development, production, utilization and conservation of the Commonwealth's gas and oil resources." Section 45.1-361.5 of the Act contains an express preemption-with-carve-out: localities may not impose conditions or require local licenses, permits, fees, or bonds that vary from or add to the chapter's requirements, but the Act does not "limit or supersede the jurisdiction and requirements of other state agencies, local land-use ordinances, regulations of general purpose," or certain tax provisions.

The carve-out, the AG concluded, permits local siting and location regulation only. It does not permit a total ban. Reading § 45.1-361.5's land-use exception broadly enough to allow a county to forbid all gas exploration "would permit a few jurisdictions to thwart the stated policy goals of the Commonwealth, as expressed in the Commonwealth Energy Policy" and would conflict with the Act's statewide pooling and spacing requirements. Local ordinances must conform to, and not be inconsistent with, state public policy. The AG also noted the constitutional dimension: a categorical ban would raise property rights, equal protection, and due process questions for unit owners and operators with valid state permits.

On the Washington County facts specifically, the AG drew the additional inference that a moratorium imposed "pending the EPA study" has the same legal effect as a ban. A moratorium imposed pending further study, the opinion reasoned, cannot be a valid exercise of delegated police power when the local governing body has neither express nor implied statutory authority for it.

The opinion declined to interpret the specific Washington County zoning text or to opine on whether the gas well qualified as an "accessory use." That kind of ordinance interpretation belongs to the locality. The AG did, however, point readers to some general signposts for reasonableness review: how the county had treated other similarly situated wells (twelve other gas wells were reportedly operating in the county), and whether the operator had voluntary leases with 97% of the unit owners (which would be relevant to any special-use-permit assessment).

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Title 45.1 was recodified into Title 45.2 (Mines and Mining) in a comprehensive 2021 recodification. The Virginia Gas and Oil Act now appears at Va. Code §§ 45.2-1500 et seq., with renumbered sections; the substantive preemption regime is similar but readers must verify current section numbers and language before relying on this 2013 analysis.

Common questions

What is the Dillon Rule?
The Dillon Rule is a strict-construction doctrine that says local governments in Virginia have only the powers expressly granted by the General Assembly, those necessarily or fairly implied from expressly granted powers, and those essential and indispensible to operations. If the power isn't there, "the inquiry is at an end." Virginia is one of the strictest Dillon Rule states.

Why doesn't general zoning power include the power to ban a use entirely?
General zoning power authorizes localities to regulate where things go (residential here, industrial there). It does not authorize banning otherwise-lawful activities throughout the entire jurisdiction. The AG noted that this Office had previously concluded that if an activity is expressly authorized by and operated in compliance with state law, a Virginia locality cannot impose a strict ban on that otherwise legal activity. The principle: a locality cannot "forbid what the legislature has expressly licensed, authorized, or required."

Is there preemption beyond the Gas and Oil Act's own preemption clause?
The AG treated the question as a combination of express limited preemption in § 45.1-361.5 and the comprehensiveness of the regulatory scheme. The Act sets up DMME, the Division of Gas and Oil, and the Virginia Gas and Oil Board, with extensive technical regulations on spacing, pooling, drilling permits, and so on. A locality cannot fill the substantive gas-and-oil-regulation space by adopting its own no-drilling rule.

What was the role of the Commonwealth Energy Policy?
The Commonwealth Energy Policy directs all state agencies and political subdivisions, "in taking discretionary action with regard to energy issues," to "recognize the elements of the Commonwealth Energy Policy and where appropriate, shall act in a manner consistent therewith." One of those elements is to "[e]nsure the availability of affordable natural gas throughout the Commonwealth," including by "developing coalbed methane gas resources." A locality's blanket prohibition on drilling would directly cut against that statutory policy.

Does a temporary moratorium have a different legal status?
No, when it operates as a de facto ban. The AG concluded that a moratorium imposed pending further study is "of the same legal effect as a ban" and cannot be a valid exercise of delegated police power without express or implied statutory authority. Pausing to study, with no end date, is functionally the same as banning. A locality that does not have authority to ban does not gain it by labeling the ban temporary.

What about a single-application denial?
The AG was careful to say that he was not interpreting the Washington County ordinance or ruling on the specific application denial. But he flagged that "the validity of an ordinance is to be tested not only by what has been done under it, but by what may, by its authority, be done." A facially valid zoning ordinance applied to produce a total ban will fail for the same reasons an express ban would.

Background and statutory framework

The decisive provisions:

• Va. Code § 45.1-361.5 (now recodified in Title 45.2): the express preemption-with-carve-out. Localities may not impose conditions, licenses, permits, fees, or bonds that vary from or add to the Act's requirements, but the Act does not "limit or supersede the jurisdiction and requirements of other state agencies, local land-use ordinances, regulations of general purpose," or certain enumerated tax provisions.
• Va. Code § 45.1-361.29: requires a permit from the Director of DMME before any ground-disturbing activity for an oil or gas well, one piece of the comprehensive state regulatory scheme the opinion relies on.
• Va. Const. art. VII, § 3: the constitutional grant of power to units of government, quoted at the start of the analysis.
• The Commonwealth Energy Policy: quoted in the body without section numbers. It directs agencies and political subdivisions, "in taking discretionary action with regard to energy issues," to recognize and where appropriate act consistently with the Policy, one element of which is ensuring the availability of affordable natural gas throughout the Commonwealth.
• The supremacy clause for local ordinances: quoted in the body (an ordinance "shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth") without its section number.

The structural argument: when state regulation in a field is comprehensive and the General Assembly has spoken to the policy goals, a locality cannot use its general zoning power to nullify the regulatory regime within its borders. The AG distinguished the existence of concurrent jurisdiction (where both state and local rules can coexist in the same area) from the absence of local authority to substitute its policy judgment for the state's on whether the activity should occur at all.

Citations

• Va. Const. art. VII, § 3
• Va. Code § 45.1-361.5 (Virginia Gas and Oil Act preemption carve-out)
• Va. Code § 45.1-361.29 (DMME drilling permit)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-102_Kilgore.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 11, 2013

The Honorable Terry G. Kilgore
Member, House of Delegates
Post Office Box 669
Gate City, Virginia 24251

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Delegate Kilgore:

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

Issue Presented

You ask whether a local governing body has the authority to adopt a blanket prohibition of the exploration for, and drilling of, oil and natural gas within the locality's boundaries through the use of its zoning laws.

Response

It is my opinion that, although 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 and the Commonwealth Energy Policy, a local governing body cannot ban altogether the exploration for, and the drilling of, oil and natural gas within the locality's boundaries.

Background

Since April 20, 2010, the Virginia Gas and Oil Board ("Board") has approved the creation of four different 160-acre units for the drilling of gas wells in Washington County. Additionally, on August 16, 2010, the Board approved an application to pool the interests in the first of those four units. The uncontradicted testimony at the pertinent Board hearings established that drilling for gas in Washington County dates back to the early 1930s, at the latest. Additionally, the Virginia Oil and Gas Conservation Commission and the Virginia Oil and Gas Board, the predecessors to the current Board, issued orders providing for the establishment of drilling units in the Early Grove Gas and Oil Field of Washington and Scott counties on at least two occasions, beginning September 1, 1983.

You report that a gas operator who has received approval from the Board for several gas drilling units within Washington County filed a request with the Washington County Zoning Administrator, seeking a determination that a gas well was an approved accessory use or structure under § 66-297 of the Washington County Code. You indicate that the agricultural limited (A-1) and agricultural general (A-2) zoning classifications for the parcels encompassing these drilling units are the two least restrictive zoning classifications in the county. That request and a subsequent appeal filed with the County Board of Zoning Appeals have resulted in denials by the county of the operator's application to locate a gas well site in Washington County. It is not clear from the information you provide whether the applicant additionally has sought and been denied a special use permit.

You relate that the application of the gas operator asserted that at least twelve gas wells are currently in existence in Washington County. It is not known when the county approved the siting of those wells or if any of those wells were evaluated with the same level of scrutiny under the county's current zoning ordinance in allowing them as permissible uses. The assertion of their existence remained unchallenged before the County Board of Zoning Appeals, so it is accepted as factually correct for purposes of this opinion.

The County Attorney for Washington County sent a letter dated March 19, 2012, to the Department of Mines, Minerals and Energy ("DMME") to inform the agency of action taken by the Washington County Board of Supervisors on this subject. At its February 28, 2012, meeting, the Board of Supervisors by a 4-3 vote "acted to delay action to amend the County Zoning Ordinance to allow for natural gas extraction until after the [U.S. Environmental Protection Agency ('EPA')] publishes its report on the public safety issues associated with hydro-fracturing." It appears from this decision that the Board of Supervisors at the present time does not intend to allow gas drilling to proceed anywhere in the county.

Applicable Law and Discussion

The Constitution of Virginia provides in Article VII, § 3 that

[t]he General Assembly may provide by general law or special act that any county, city, town, or other unit of government may exercise any of its powers or perform any of its functions and may participate in the financing thereof jointly or in cooperation with the Commonwealth or any other unit of government within or without the Commonwealth.

Pursuant to this authority, the General Assembly has afforded localities general power to adopt land use regulations to further the welfare of their inhabitants. Nonetheless, the Code of Virginia further provides that

[t]he Constitution and laws of the United States and of the Commonwealth shall be supreme. Any ordinance, resolution, bylaw, rule, regulation, or order of any governing body or any corporation, board, or number of persons shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth.

In determining the power of a local governing body to adopt a particular ordinance or regulation, 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.'" Its corollary states that "[t]he powers of county boards of supervisors are fixed by statute and are limited to those powers conferred expressly or by necessary implication." The Dillon Rule is applicable to the initial determination, from express words or by implication, of whether a local power exists at all and "[i]f the power cannot be found, the inquiry is at an end." Therefore, to have the power to act in a certain area, local governments must have express enabling legislation or authority that is necessarily implied from enabling legislation. Although state law grants localities zoning power, no statute expressly empowers a locality to adopt a ban on oil and gas exploration or drilling.

The Commonwealth and localities may have concurrent jurisdiction over the same subject matter, and the fact that the Commonwealth, in the exercise of its police power, has made regulations with respect to a subject does not necessarily prohibit a county from legislating on the same subject. Nonetheless, irrespective of any general authority to act in an area, a local government may not exercise its police power either by adopting a local law inconsistent with constitutional or general law or when the legislature has restricted such an exercise by preempting the area of regulation. A local ordinance is inconsistent with state law if state law preempts local regulation in the area, either by expressly prohibiting local regulation or by enacting state regulations so comprehensive that the Commonwealth may be considered to occupy the entire field.

Pertinent to your inquiry, the Virginia Gas and Oil Act (the "Act") provides a comprehensive structure for the regulation of gas and oil development and production by DMME, its Division of Gas and Oil and the Virginia Gas and Oil Board (the "Board"). Section 45.1-361.29 requires any person, before beginning any ground disturbing activity for any oil or gas well, to obtain a permit from the Director of DMME. Additionally, pursuant to the Act, DMME has promulgated extensive regulatory provisions that control such activities with significant specificity.

Despite this overarching statutory and regulatory scheme, the Act does not preempt entirely the regulation of these activities. Section 45.1-361.5 includes an express carve-out from preemption:

No county, city, town or other political subdivision of the Commonwealth 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. However, no provision of this chapter shall be construed to limit or supersede the jurisdiction and requirements of other state agencies, local land-use ordinances, regulations of general purpose, or §§ 58.1-3712, 58.1-3712.1, 58.1-3713, 58.1-3713.1, 58.1-3713.2 and 58.1-3713.3.

Although the first sentence of § 45.1-361.5 provides a general exemption for holders of state gas or oil well permits from local license, permit, fee and bond requirements, the second sentence sets forth several exceptions to that exemption. Because statutes must be read as a whole, with every provision given effect, if possible, the first sentence of § 45.1-361.5 must be read as modified by the second sentence of that section. Among the limited exceptions, the General Assembly has included "local land-use ordinances." Zoning laws are land-use ordinances.

Nevertheless, statutes are not to be read in isolation and the Code of Virginia constitutes one body of law. Pursuant to the Commonwealth Energy Policy, the General Assembly has provided that "[a]ll agencies and political subdivisions of the Commonwealth, in taking discretionary action with regard to energy issues, shall recognize the elements of the Commonwealth Energy Policy and where appropriate, shall act in a manner consistent therewith." One of the goals set forth in the Commonwealth Energy Policy is "[to] [e]nsure the availability of affordable natural gas throughout the Commonwealth by expanding Virginia's natural gas distribution and transmission pipeline infrastructure; developing coalbed methane gas resources and methane hydrate resources; encouraging the productive use of landfill gas; and siting one or more liquefied natural gas terminals." The development of Virginia's natural resources is clearly a matter of priority under the Commonwealth Energy Policy, as well as under the Act.

The overriding goal of statutory interpretation is to discern and give effect to legislative intent. The comprehensiveness of the Gas and Oil Act supports the conclusion that the carve-out to total preemption set out in § 45.1-361.5 does not extend to a locality's ability to ban completely the operation of the gas and oil industry within its borders. Rather, the carve-out is intended to allow local regulation of location and siting issues only. Reading § 45.1-361.5 so broadly so as to allow a locality to adopt a complete ban on the exploration and drilling of oil and natural gas would permit a few jurisdictions to thwart the stated policy goals of the Commonwealth, as expressed in the Commonwealth Energy Policy. Such a conclusion further would conflict with the Gas and Oil Act's statewide requirements for the spacing of gas and oil wells, obviate the numerous statutory and regulatory provisions established for the uniform regulation of permitting and pooling of units, and trigger significant constitutional questions involving property rights, equal protection, and due process. It is fundamental that local ordinances must conform to, and not be in conflict with, the public policy of the Commonwealth as set out in its statutes.

It is well-settled that if any doubt remains as to the existence of such power in view of all the facts, that doubt must be resolved against the locality. Moreover, "a local government may not 'forbid what the legislature has expressly licensed, authorized, or required.'" The "fundamental rule is that local ordinances must conform to and 'not be inconsistent with' the public policy of the State as set forth in its statutes." Applying these principles, this Office previously has concluded that, if an activity is expressly authorized by and is operated in compliance with state law, a Virginia locality cannot impose a strict ban on that otherwise legal activity. I note that the validity of an ordinance is to be tested not only by what has been done under it, but by what may, by its authority, be done. An outright ban, whether express or by operation of improper application of a facially valid zoning ordinance, exceeds a locality's delegation of authority. I therefore conclude that, while an affected locality may regulate the location and siting of oil and gas drilling practices, such authority may not be used to prohibit completely such activity from occurring within its borders.

With regards to the specific situation you present, I first note zoning ordinances are generally either one of two kinds: those that enumerate allowed usage or those that list prohibited uses. You relate that ordinances establishing the zoning districts at issue in Washington County list specific approved activities for the areas zoned A-1 and A-2. Among other permitted uses, the A-1 area is zoned to allow "[u]tilities and public services as follows . . . [u]nderground pipes and lines, manholes, pumping and booster stations, meters and related appurtenances necessary for the transmission and distribution of potable water, wastewater collection, and natural gas transmission and distribution."

You indicate, however, that the gas operator's application has been denied in effect for any location within the county. To the extent this is the case, the action amounts to an exercise of veto power by local regulation of gas well operation in its entirety, a power a locality does not have, as discussed above. Rather, as anticipated by § 45.1-361.5, a locality's delegated power is limited to the ability to adopt reasonable siting regulations. The action by the Washington County Board of Supervisors on February 28, 2012, signaling that it would not amend its county zoning ordinance to allow for natural gas extraction until after the EPA publishes its study on hydraulic fracturing, makes clear the local governing body's present intention to maintain a countywide ban on this activity. A moratorium on an activity imposed by the local governing body pending further study is of the same legal effect as a ban and cannot be a valid exercise of delegated police power when the local governing body has neither express authority from a statute, nor implied authority therefrom, for such action.

Conclusion

Accordingly, it is my opinion that, although 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 and the Commonwealth Energy Policy, a local governing body cannot ban altogether the exploration for, and the drilling of, oil and natural gas within the locality's boundaries.

With kindest regards, I am,

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General