Non-Home Rule Municipality Can Prohibit Oil and Gas Drilling

Non-Home Rule Municipality Can Prohibit Oil and Gas Drilling

  Monday, January 30, 2012    Julie Tappendorf

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An Illinois appellate court recently held that the City of Carlyle, a non-home rule municipality, has the authority to prohibit the drilling of oil within the City’s boundaries.  Tri-Power Resources, Inc. v. City of Carlyle, 2012 IL App (5th) 110075.

TriPower had leased mineral interests in a 67-acre parcel of land in unincorporated Clinton County and had obtained a permit to drill for oil on the property from the Illinois Department of Natural Resources (IDNR).  The City subsequently annexed the property, which was automatically zoned into a residential zoning district.  The City’s zoning code prohibits the drilling of oil on residentially zoned property.  TriPower sued the City, claiming that the City was preempted from prohibiting the oil drilling on the property by the Illinois Oil and Gas Act.  

The appellate court first addressed the issue of the City’s authority to prohibit the drilling activities, finding that a non-home rule municipality is limited to “those powers specifically conveyed by the constitution or by statute.”  The Illinois Municipal Code authorizes municipalities to control the use of property through its zoning authority.  Although the City’s zoning code did not expressly prohibit (or permit as a by-right or special use) the drilling or operation of gas/oil wells, the court determined that these uses were deemed prohibited by exclusion.”  In addition, the court noted that Section 11-56-1 of the Illinois Municipal Code provides that local municipal governments “may grant permits to mine oil or gas.”  In other words, the City had express statutory authority to regulate, and even prohibit, oil drilling within its borders.

Next, the appellate court addressed TriPower’s argument that the Illinois Oil and Gas Act preempts municipalities from prohibiting drilling activities that are permitted by the IDNR.  The court noted that the Oil and Gas Act authorizes the Department to issue drilling permits, but only upon receipt of official consent of the relevant municipality.  The court concluded that the plain meaning of this statutory provision is to authorize municipalities to prevent the IDNR from issuing a permit for activities to occur within municipal limits.  

Thanks to Patty Salkin for the case summary on her blog, Law of the Land.