IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

2023 Fall Term

_____________________

No. 22-ICA-83

_____________________

SWN PRODUCTION COMPANY, LLC, 

Plaintiff Below, Petitioner,

v.

CITY OF WEIRTON and 

CITY OF WEIRTON BOARD OF ZONING APPEALS, 

Defendants Below, Respondents.

___________________________________________________________

Appeal from the Circuit Court of Brooke County

Honorable Jason A. Cuomo, Judge

Nos. CC-05-2021-P-35 & CC-05-2021-C-71

REVERSED

_________________________________________________________

Submitted: September 19, 2023

Filed: November 1, 2023

Shawn N. Gallagher, Esq.

Kathleen Jones Goldman, Esq.

Buchanan Ingersoll & Rooney PC

Pittsburgh, Pennsylvania

Counsel for Petitioner

Ryan P. Simonton, Esq.

Margaret E. Lewis

Kay Casto & Chaney, PLLC

Morgantown, West Virginia

Vincent S. Gurrera, Esq. 

Gurrera Law Offices, PLLC 

Weirton, West Virginia

FILED

November 1, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
Daniel J. Guida, Esq.

Guida Law Office 

Weirton, West Virginia

Counsel for Respondent City of

Weirton

JUDGE SCARR delivered the Opinion of the Court.
1

SCARR, JUDGE:

Petitioner, SWN Production Company, LLC (“SWN”), appeals the August 

23, 2022, “Order Regarding Pre-Emption” entered by the Circuit Court of Brooke County. 

In that order, the circuit court concluded that Respondent City of Weirton’s (“City”) 

municipal zoning ordinances were not preempted by either the West Virginia Oil and Gas 

Act or the Natural Gas Horizontal Well Control Act (“Horizontal Well Act”).1 On appeal, 

SWN argues that the circuit court erred by failing to recognize that the Horizontal Well 

Act delegates “sole and exclusive authority” over all aspects of the permitting and location 

of oil and gas exploration and production activities to the Secretary of the West Virginia 

Department of Environmental Protection (“WVDEP”).

For the reasons discussed below, this Court reverses the August 23, 2022, 

“Order Regarding Pre-Emption,” entered by the Circuit Court of Brooke County. 

I. Facts and Procedural Background

SWN Production Company, LLC is a Texas-based natural gas exploration 

and production company. The City of Weirton is a Class II city2 located in the northern 

panhandle. 

1 The Oil and Gas Act is codified within West Virginia Code § 22-6-1 et seq. The 

Horizontal Well Act is codified within West Virginia Code § 22-6A-1 et seq.

2 West Virginia Code § 8-1-3 (1969) classifies cities with a population between 

10,000 and 50,000 as Class II. 
2

On June 11, 2021, SWN submitted its application for a conditional use permit 

to the City in order to obtain local zoning approval under the City’s then existing Unified 

Development Ordinance (“UDO”) for drilling at a well site located on a parcel within the 

City known as the Brownlee Site. Under the UDO, the setback requirement for drilling 

sites was 200 feet from any residential, church, or school use. 

On July 7, 2021, the City enacted a new Unified Development Ordinance 

(“NUDO”) which increased the setback requirement to 2,500 feet from any residential, 

church, or school use and removed oil and gas extraction as a permitted conditional use 

anywhere in the City except for industrial-zoned districts. The Brownlee Site is not within 

an industrial zone.

On August 3, 2021, and September 7, 2021, the City of Weirton Board of 

Zoning Appeals (“Board”) conducted hearings on SWN’s application for a conditional use 

permit. On October 1, 2021, the Board issued its written decision denying SWN’s 

application. The Board reasoned that “SWN has failed to prove that the proposed 

conditional use is compatible with the goals of the [City’s] Comprehensive Plan, including 

objective 2.3, which provides[,] in part[,] that future development in the Three Springs 

Drive area should be managed ‘to avoid worsening traffic congestion and additional stress 

on other existing infrastructure.’”
3

On October 18, 2021, SWN applied to the West Virginia Department of 

Environmental Protection (“WVDEP”) for permits to drill for and develop natural gas at 

the Brownlee Site. On February 8, 2022, WVDEP issued SWN Well Work Permit No. 47-

009-00328-00-00 for the Brownlee Site. 

On October 29, 2021, SWN filed a Petition for Writ of Certiorari in the 

Circuit Court of Brooke County seeking review of the Board’s denial of SWN’s conditional 

use permit. Also on October 29, 2021, SWN filed a Verified Complaint against the City in 

the Circuit Court of Brooke County. The Verified Complaint sought to have the circuit 

court declare that the West Virginia Oil and Gas Act preempted the UDO and NUDO. The 

Verified Complaint also asserted a claim for a taking by the City, as well as a count seeking 

injunctive relief to prevent the City from enforcing the UDO or NUDO. On March 14, 

2022, the circuit court issued an order consolidating the two matters. In that order, the 

circuit court also stayed the issues presented in the Writ of Certiorari until the circuit court 

made a final determination on the preemption issues presented by the Verified Complaint. 

On March 29, 2022, SWN filed its First Amended Verified Complaint which set forth the 

same causes of action as the Verified Complaint but added information about the WVDEP 

permit for the Brownlee Site.

No discovery was conducted on the preemption issue and there was no 

hearing. On August 23, 2022, the circuit court issued its “Order Regarding Pre-Emption.”

In that order, the circuit court held that the Legislature did not intend for West Virginia
4

Code § 22-6-1 et seq. or West Virginia Code § 22-6A-1 et seq. to expressly or impliedly 

preempt the authority of municipalities to enact reasonable and rational zoning ordinances 

under West Virginia Code § 8A-1-1 et seq. The circuit court interpreted those statutes to 

mean:

[T]he operation...and... permitting of [oil and gas] companies 

is...to be “largely, if not completely, regulated by the 

[WVDEP]; and that local municipalities, although not 

permitted to completely ban the lawful operation of oil and gas 

companies within their city limits, are permitted to pass 

reasonable and rational zoning ordinances/regulations to allow 

said companies to operate therein while protecting the health, 

welfare, and safety of its citizens.” 

The circuit court then noted: “If the Supreme Court of Appeals of West 

Virginia wants to tell our communities they have lost that ability...then it will have to do 

so without having had any express direction from our [L]egislature.” The circuit court 

dismissed SWN’s preemption count from its amended complaint, lifted the stay on the 

issues presented in the Writ of Certiorari, and permitted the parties to proceed with 

discovery on all other remaining issues. It is from this order that SWN appeals to the 

Intermediate Court of Appeals.

On September 15, 2023, four days before oral argument, this Court was 

notified by the City’s counsel that the NUDO enacted on June 7, 2021, was repealed by the 

City on or about September 11, 2023, re-enacting the previous UDO adopted in 2005. Oral 

argument was held before this Court on September 19, 2023, with all parties appearing in 

person. 
5

II. Standard of Review

“A circuit court’s entry of a declaratory judgment is reviewed de novo.” Syl. 

Pt. 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995). Our decision in this case 

requires an examination of various statutory provisions and resolutions of questions of law. 

“Where the issue on an appeal from the circuit court is clearly a question of law involving 

an interpretation of a statute, we apply a de novo standard of review.” City of Morgantown 

v. Nuzum Trucking Co., 237 W. Va. 226, 230, 786 S.E.2d 486, 490 (2016) (quoting Syl. 

Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995)).

III. Discussion

As a preliminary matter, this Court notes that the City’s recent repeal of the 

NUDO, raises the issue of mootness. The repealed ordinance appears to have eliminated 

the primary setback requirement at issue in this case; however, during oral argument, the 

parties indicated that there were and are still additional steps and regulatory requirements 

under the re-enacted UDO from 2005 before SWN may proceed with drilling, even after 

the WVDEP had issued them a permit to begin doing so.3 Thus, this Court finds that this 

3 Additionally, SWN argues that both the UDO and NUDO are facially preempted. 

Further, this Court is not aware of the additional requirements that SWN must complete 

before the City will issue them a permit to begin drilling. 
6

matter is not moot, and even if it were, it would fall into one of the exceptions to the 

mootness doctrine.4

SWN argues that the circuit court erred by determining that municipal zoning 

regulations are neither expressly or impliedly preempted by the West Virginia Oil and Gas 

Act, West Virginia Code § 22-6-1 et seq., as amended to address horizontal drilling by 

West Virginia Code § 22-6A-1 et seq., where the Horizontal Well Act delegates “sole and 

exclusive authority” over all aspects of the permitting and location of oil and gas 

exploration and production activities to the Secretary of the West Virginia Department of 

Environmental Protection.

4 The West Virginia Supreme Court of Appeals has repeatedly stated:

“Three factors to be considered in deciding whether to address 

technically moot issues are as follows: first, the court will 

determine whether sufficient collateral consequences will 

result from determination of the questions presented so as to 

justify relief; second, while technically moot in the immediate 

context, questions of great public interest may nevertheless be 

addressed for future guidance of the bar and of the public; and 

third, issues which may be repeatedly presented to the trial 

court, yet escape review at the appellate level because of their 

fleeting and determinate nature, may appropriately be 

decided.”

Syl. Pt. 3, State ex rel. W. Va. Secondary Sch. Activities Comm’n. v. Cuomo, __ W. 

Va. __, 880 S.E.2d 46 (2022) (quoting Syl. Pt. 1, Israel ex rel. v. W. Va. Secondary Sch.

Activities Comm’n., 182 W. Va. 454, 388 S.E.2d 480 (1989)).
7

The City argues in response that there is no express or implied preemption 

of its local zoning laws within West Virginia Code § 22-6-1 et seq., and the City has 

specific authority to adopt zoning laws under the Land Use Planning Act, West Virginia

Code § 8A-7-1 et seq.

A. Legislative Acts

Because our analysis requires this Court to reconcile the meaning of West 

Virginia Code § 22-6-1 et seq., and § 22-6A-6 et seq. with West Virginia Code § 8A-1-1 

et seq., we must attempt to ascertain the intent of the Legislature.5 Smith v. State 

Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“The primary object 

in construing a statute is to ascertain and give effect to the intent of the Legislature.”) “A 

statutory provision which is clear and unambiguous and plainly expresses the legislative 

intent will not be interpreted by the courts but will be given full force and effect.” City of 

Morgantown v. Nuzum Trucking Co., 237 W. Va. 226, 230, 786 S.E.2d 486, 490 (2016) 

(quoting Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951)). 

5 This opinion only addresses preemption in regard to the West Virginia Code § 22-

6A-1 et seq., the horizontal well act. This Court notes that this act was enacted after the 

already existing West Virginia Oil and Gas Act, amending it for the sole purpose of 

addressing horizontal drilling. 
8

Under Chapter 22 of the West Virginia Code, titled “Environmental 

Resources” our Legislature created the West Virginia Department of Environmental 

Protection (“DEP”) for the purpose of: 

[C]arry[ing] 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. 

W. Va. Code § 22-1-1(a)(5) (2001).

Further, the Legislature declared that:

It is the policy of the State of West Virginia, in cooperation 

with other governmental agencies, public and private 

organizations, and the citizens of the 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 fulfill the social, economic and other requirements of 

present and future generations. The purpose of this chapter are:

(1) To strengthen the commitment of this state to restore, 

maintain and protect the environment;

(2) To consolidate environmental regulatory programs in a 

single state agency;...

(8) To improve the management and effectiveness of state 

environmental protection programs;

W. Va. Code § 22-1-1(b).
9

Specifically, the West Virginia Oil and Gas Act provides that the Secretary 

of the WVDEP (or their designee) “shall have as his or her duty the supervision of the 

execution and enforcement of matters related to oil and gas set out in § 22-6-1 et seq.[] 

[and] § 22-6A-1 et seq.... of this code.” W. Va. Code § 22-6-2(a) (2023). Also, “[t]he 

[S]ecretary shall have full charge of the oil and gas matter set out in § 22-6-1 et seq.[] [and]

§ 22-6A-1 et seq....of this code.” W. Va. Code § 22-6-2(c). Further, the secretary shall 

“[p]erform all duties as the permit issuing authority for the state in all matters pertaining to 

the exploration, development, production, storage and recovery of this state’s oil and gas.”

W. Va. Code § 22-6-2(c)(15).6 “[T]he Legislature has made it clear...that all environmental 

programs in West Virginia are to be regulated by the D[epartment] of Environmental 

Protection.” Solid Waste Serv. of W. Va. v. Pub. Serv. Comm’n, 188 W. Va. 117, 122, 422 

S.E.2d 839, 844 (1992). 

B. Preemption 

As a general rule, “preemption is disfavored in the absence of convincing 

evidence warranting its application.” In re Flood Litigation, 216 W. Va. 534, 547, 607 

6 The Secretary is also empowered to “[a]dopt rules with respect to the issuance, 

denial, retention, suspension or revocation of permits authorizations and requirements of 

this chapter, which rules shall assure that the rules, permits, and authorizations issued by 

the [S]ecretary are adequate to satisfy the purposes of § 22-6-1 et seq., [] [and] § 22-6A-1 

et seq. ... of this code....” W. Va. Code § 22-6-2(c)(16). 
10

S.E.2d 863, 876 (2004) (quoting Hartley Marine Corp. v. Mierke, 196 W. Va. 669, 673, 

474 S.E.2d 599, 603 (1996)). “As a result, there is a strong presumption that [the 

Legislature] does not intend to preempt areas of traditional [municipal] regulation.” Id.

(quoting Chevy Chase Bank v. McCamant, 204 W. Va. 195, 300, 512 S.E.2d 217, 222 

(1998)). Nevertheless, where supported preemption may either be express or implied. See 

id. “To establish a case of express preemption requires proof that Congress, through 

specific language, preempted the specific field covered by state law.... To prevail on a 

claim of implied preemption, ‘evidence of a congressional intent to pre-empt the specific 

filed covered by state law’ must be pinpointed.” Id. (quoting Hartley, 196 W. Va. at 674, 

474 S.E.2d at 604). 

“A 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.” Syl. Pt. 1, Toler v. City of 

Huntington, 153 W. Va. 313, 168 S.E.2d 551 (1969) (quoting Syl. Pt. 1, Brackman’s Inc. 

v. City of Huntington, 126 W. Va. 21, 27 S.E.2d 71 (1943)). “A municipal corporation has 

only the powers granted to it by the [L]egislature, and any such power it possesses must be 

expressly granted or necessarily or fairly implied or essential and indispensable. If any 

reasonable doubt exists as to whether a municipal corporation has a power, the power must 

be denied.” Syl. Pt. 2, State ex rel. Charleston v. Hutchinson, 154 W. Va. 585, 176 S.E.2d 

691 (1970). “When a provision of a municipal ordinance is inconsistent or in conflict with 

a statute enacted by the Legislature the statute prevails and the municipal ordinance is of 
11

no force and effect.” Syl. Pt. 1, Davidson v. Shoney’s Big Boy Rest., 181 W. Va. 65, 380 

S.E.2d 232 (1989) (quoting Syl. Pt. 1, Vector Co. v. Bd. of Zoning Appeals, 155 W. Va. 

362, 184 S.E.2d 301 (1971)); see also Brackman’s Inc., 126 W. Va. at __, 27 S.E.2d at 78 

(any inconsistency between state and local law “must be resolved in favor of the State”).

A municipal ordinance conflicts with a state statute if it espouses a view that is inconsistent 

and irreconcilable with that contained in a state statute. See Vector Co, 155 W. Va. at 366-

67, 184 S.E.2d at 304 (1971).

i. Express Preemption

First, SWN argues that the Legislature in enacting West Virginia Code § 22-

6A-6(b) (2011) plainly and expressly stated its intent to preempt the entire field of oil and 

gas regulation, even in those areas that are traditionally left to local zoning ordinances, 

such as site location. Specifically, West Virginia Code § 22-6A-6(b) provides that: 

Except for the duties and obligations conferred by statute upon 

the shallow gas well review board pursuant to article eight, 

chapter twenty-two-c of this code, the coalbed methane review 

board pursuant to article twenty-one of this chapter, and the oil 

and gas conservation commission pursuant to article nine, 

chapter twenty-two-c of this code, the [WVDEP] has sole and 

exclusive authority to regulate the permitting, location, 

spacing, drilling, fracturing, stimulation, well completion 

activities, operation, any and all other drilling and production 

processes, plugging and reclamation of oil and gas wells and 

production operations within the state.

(Emphasis Added). 
12

In response the City argues that there is no provision in the Land Use 

Planning Act that exempts oil and gas development from zoning laws. Further, the City 

asserts that the Legislature did address zoning applications to oil and gas development 

specifically within the Land Use Planning Act and chose not to prohibit zoning. West 

Virginia Code § 8A-7-10(3) (2004) provides that:

Nothing in this chapter authorizes an ordinance, rule or 

regulation preventing or limiting, outside of municipalities or 

urban areas, the complete use (i) of natural resources by the 

owner; or (ii) of a tract of contiguous tracts of land of any size 

for a farm or agricultural operation as defined in § 19-19-2 by 

the owner.

The Legislature is well aware of how to preempt zoning laws when it intends 

to do so. In the Land Use Planning Act, it made express preemptions for other uses: group 

residential facilities must be permitted in all residential districts pursuant to West Virginia 

Code § 8A-11-1; essential utilities and equipment are a permitted use in any zoning district, 

West Virginia Code § 8A-7-3(e). This shows that the Legislature is presumed to know the 

effect of its actions, and it will speak clearly when it intends to preempt another law. 

To establish a case of express preemption requires proof that the legislature, 

through specific and plain language in the statute, preempted the specific field covered by 

local law. See Morgan v. Ford Motor Co., 224 W. Va. 62, 69-70, 680 S.E.2d 77, 84-85 

(2009). However, this Court finds it unnecessary to engage in a more exhaustive express 

preemption analysis because, in this case, West Virginia Code § 22-6-1 et seq., and § 22-
13

6A-6 et seq. clearly preempt the City’s NUDO (which has been repealed) and UDO under

implied conflict preemption.7

ii. Implied Preemption

Where a law does not expressly preempt other laws, it may still operate to 

preempt them if it is intended to occupy the entire regulatory field or if there exists a 

conflict between the laws such that compliance with both is impossible. See Morgan, 224 

W. Va. 62, 680 S.E.2d 77, 85 (2009) at fn. 8. There are two types of implied preemption, 

which are field preemption and conflict preemption. See In re Flood Litigation, 216 W. 

Va. 534, 547, 607 S.E.2d 863, 876 (2004). 8

[F]ield pre-emption[] [occurs] where the scheme of 

federal regulation is “ ‘ so pervasive as to make reasonable the 

inference that Congress left no room for the States to 

supplement it,’” and conflict pre-emption[] [occurs] where 

“compliance with both federal and state regulations is a 

7 In reaching our decision, we take no position on the policy issues raised by these 

preemption arguments before us in regard to express preemption, leaving that up to the 

Legislature. Preemption clearly raises issues of line drawing between different state 

statutes enacted by the Legislature, and although there are certainly opposing arguments 

that can and have been made in regard to express preemption, we find that there is sufficient 

direction by the Legislature to conclude the City’s ordinance is preempted under implied 

conflict preemption. 

8 The parties also dispute whether West Virginia Code § 22-6A-1 et seq., impliedly 

preempts the City under implied field preemption. However, because this Court finds that 

implied conflict preemption resolves that matter before us, we will not engage in an 

analysis of implied field preemption.
14

physical impossibility,” or where state law “stands as an 

obstacle to the accomplishment and execution of the full 

purposes and objectives of Congress[.]” 

Id. (citation omitted). 

On appeal, SWN argues that the Horizontal Well Act directly conflicts with 

the specific requirements of the City’s ordinances. For example, the Horizontal Well Act

provides that “the center of well pads may not be located within six hundred twenty-five 

feet of an occupied dwelling structure.” See W. Va. Code § 22-6A-12 (2011). In contrast, 

the NUDO, which only permits oil and gas extraction in the City’s industrial districts, 

provides that “[n]o well may be located closer than two thousand five hundred (2,500) feet 

of any residential, church or school use.” See NUDO § 9.6.20(a). Further, SWN asserts that 

even under the now re-enacted UDO, the Horizontal Well Act and the local zoning 

ordinance have fundamental conflicts, because the UDO purports to vest final approval of 

well locations in a body other than WVDEP. The City’s approval scheme is in direct 

conflict with the Horizontal Well Act’s express language, which vests WVDEP with “sole 

and exclusive” authority to regulate the “permitting” and “location” of horizontal gas wells. 

W. Va. Code § 22-6A-8(d) (2011). SWN argues that this language in the Horizontal Well 

Act cannot be reconciled with the City’s local ordinance which provides requirements or 

vests final approval in a body other than the WVDEP. We agree. 

In response, the City argues that there is a false conflict between the City’s 

local ordinance under the Land Use Planning Act and the Horizontal Well Act. The zoning 
15

regulations at issue make no attempt to regulate the operation of oil and gas wells governed 

by Chapter 22, Article 6. The City relies on Longwell v. Hodge, 171 W. Va. 45, 297 S.E.2d 

820 (1982), where the Supreme Court of Appeals found a false conflict, stating: 

What we have here is the perfect example of a “false conflict.” 

The State, by licensing the sale of beer, neither acquires, nor 

seeks to acquire, any positive interest in the operation of 

taverns or restaurants selling beer at particular locations within 

municipalities. Rather, the State’s interest is defensive, to 

assure that beer is not sold by an “unsuitable person” or in an 

“unsuitable place.” See W. Va. Code § 11-16-12 [1972]. Thus, 

to the extent that a municipality is not seeking to encroach on 

the licensing or taxing authority the State holds unto itself, the 

municipality may zone either to allow or not allow beer-selling 

restaurants just as it may zone other land uses.

Longwell, 171 W. Va. at 49, 297 S.E.2d at 824. 

Conflict preemption arises where a state statute and municipal ordinance are 

in direct conflict, where a municipal ordinance stands as an added obstacle to an already 

enacted legislative statute. See Metro Tristate, Inc. v. Pub. Serv. Comm’n of W. Va., 245 

W. Va. 495, 504, 859 S.E.2d 438, 447 (2021) (“Conflict preemption arises from a direct 

clash between state and federal law, and ‘conventional conflict pre-emption principles 

require pre-emption “where [...] state law stands as an obstacle to the accomplishment and 

execution of the full purposes and objectives of Congress.”’”) (quoting Boggs v. Boggs, 

520 U.S. 833, 844 (1997)). Under conflict preemption, municipal ordinances are preempted 
16

where they directly conflict with a statute enacted by the Legislature. See Id.

9 “When a 

provision of a municipal ordinance is inconsistent or in conflict with a statute enacted by 

the Legislature the statute prevails and the municipal ordinance is of no force and effect.” 

Syl. Pt. 2, Am. Tower Corp. v. Common Council of Beckley, 210 W. Va. 345, 557 S.E.2d 

752 (2001) (quoting Syl. Pt. 1, Vector Co., 155 W. Va. at 362, 367, 184 S.E.2d at 301, 

304). Further, the West Virginia Constitution provides that “any such law or ordinance so 

adopted, shall be invalid and void if inconsistent or in conflict with this Constitution or the 

general laws of the State then in effect, or thereafter, from time to time enacted.” W. Va. 

Const. art. VI, § 39a.

Under West Virginia Code § 22-6-1 et seq. as amended by West Virginia 

Code § 22-6A-1 et seq., the Legislature explicitly set forth a comprehensive framework for 

the application for oil well permits. The applicant is required to specifically set forth the 

type of well, the location, the depth, the purpose of the well, and fees associated with the 

well, etc. See W. Va. Code §§ 22-6A-7, 9; see also W. Va. Code § 22-6-6(c) (1994). The 

Horizontal Well Act provides that the WVDEP may not issue a drilling permit if it 

determines that: “(1) The proposed well work will constitute a hazard to the safety of 

persons; (2) The plan for soil erosion and sediment control is not adequate or effective; (3) 

Damage would occur to publicly owned lands or resources; or (4) The proposed well work 

9 “Under an implied conflict preemption analysis, federal statutory or policy 

language explicitly signaling an intent to preempt state law is not necessary.” Metro, 245 

W. Va. at 504, 869 S.E.2d at 447. 
17

fails to protect fresh water sources or supplies.”10 W. Va. Code § 22-6A-8(d). Additionally, 

the WVDEP must confirm that all well location restrictions set forth in the Horizontal Well

Act have been satisfied. See W. Va. Code § 22-6A-8(e). Finally, the WVDEP is tasked 

with promptly reviewing and considering all comments raised by the public and appeals of 

applications.11 See W. Va. Code §§ 22-6A-8(f), 9. The circuit court held that because the 

City is generally empowered by the Land Use Planning Act, West Virginia Code § 8A-7-

1, to enact traditional zoning laws, and that the Land Use Planning Act does not specifically 

limit the City’s ability to regulate oil and gas, the City retains the power to enact and 

regulate oil and gas through its zoning laws; even when a permit has been approved 

authorizing a proposed well in a specific location. 

Here, the objective terms of the Horizontal Well Act directly conflict with 

the additional requirements of the City’s ordinance. On October 1, 2021, the Board issued 

its written decision denying SWN’s application. The Board reasoned that “SWN has failed 

to prove that the proposed conditional use is compatible with the goals of the 

Comprehensive Plan, including objective 2.3, which provides, in part, that future 

development in the Three Springs Drive area should be managed ‘to avoid worsening 

10 The Director is given the sole discretion to authorize or deny the issuance of a 

permit on the basis of numerous factors. See W. Va. Code §§ 22-6-6(h), 11. 

11 Further, pursuant to West Virginia Code §§ 22-6-9, -17, the regulations further 

state the specific requirements for notice to property owners, the procedure for filing 

comments, the process for setting hearings upon objections to such drilling, as well as the 

procedures for an appeal process. 
18

traffic congestion and additional stress on other existing infrastructure.’” On October 18, 

2021, SWN applied to the WVDEP for permits to drill for and develop natural gas at the 

Brownlee Site. On February 8, 2022, WVDEP issued SWN Well Work Permit No. 47-009-

00328-00-00 for the Brownlee Site.

Clearly, under the now repealed NUDO there was a direct conflict between 

the state statute and city ordinance. Under the City’s NUDO the setback requirement was 

2,500 feet, while the state only requires a setback requirement of 625 feet. See W. Va. Code 

§ 22-6A-12; see also NUDO § 9.6.20(a). These setback requirements cannot be reconciled 

and are in direct conflict with each other. Further, to the extent that the City’s re-enacted 

UDO has other requirements which conflict with the state statute, it is also preempted under 

conflict preemption.12 Even absent express preemption, the City’s ordinance is in direct 

conflict with the state’s Horizontal Well Act, where the Legislature has vested in the 

WVDEP sole and exclusive authority to regulate the permitting, location, and any and all 

other drilling and productions processes of oil and gas wells and production operations 

within the state. See W. Va. Code § 22-6A-6(b).13

12 This Court is not saying that fees or certain paperwork create a direct conflict, 

however, to the extent that SWN must go through further hearings or administrative 

procedures, and/or there are other regulatory requirements that conflict, a direct conflict

exists between the City’s UDO and the WVDEP’s authority to grant permits. 

13 See EQT Prod. Co. v. Wender, 870 F.3d 322 (4th Cir. 2017). There, a county 

commission, relying on its general authority to abate public nuisances, issued a blanket ban 

on all disposal of wastewater from drilling operations within county lines based on 

concerns that wastewater storage locations were leaking wastewater into local waterways. 
19

Once the WVDEP issued a permit, the City cannot hinder SWN’s ability to 

begin drilling. The City’s approval scheme is in direct conflict with the Horizontal Well 

Act which vests WVDEP with “sole and exclusive authority” to regulate the “permitting” 

and “location” of horizontal gas wells. See W. Va. Code § 22-6A-8(b). This language 

cannot be reconciled with the City’s position that a municipality retains the authority to 

require zoning approval for an oil or gas well that has already been approved under the 

state’s permitting program. 

IV. Conclusion

For the foregoing reasons, this Court reverses the August 23, 2022, “Order 

Regarding Pre-Emption,” entered by the Circuit Court of Brooke County.

Reversed.

See Id. The storage and disposal of wastewater is specifically regulated by the WVDEP 

who is charged with protecting against water pollution arising from oil and gas production.

See Id. In EQT, the Fourth Circuit held that the county’s ordinance created a conflict with 

the WVDEP’s statutory authority and was preempted by state law. See Id. at 332, 336-37.