AgVocate: In defense of local governments
I have often advocated on behalf of local governments.
Representatives who live and work in our communities are often more responsive to the concerns of their local constituents, and usually have a more intimate understanding of those concerns. I have noticed in the past few years there is a growing tension between local and state government in North Dakota and other energy-producing states around the country.
We often hear discussion of local control in the context of federal agencies intervening in regulatory matters that states think they are better situated to handle. There is a certain hypocrisy involved, however, when these same state agencies tout local control when they are speaking to the federal government, and then turn around and attempt to expand their jurisdiction to the detriment of local governments.
It is true there are certain matters the state agencies are better suited to regulate, but county and township zoning authority is being slowly and surreptitiously attacked by state agencies in North Dakota and elsewhere.
In 2013, the North Dakota Industrial Commission supported amendments to a bill initially intended to give the Oil and Gas Division authority to regulate saltwater gathering lines. Although most of this language was later removed because it apparently became inexplicably unnecessary, some language remained. That language allowed Oil and Gas to consider the road access and location safety related to disposal facilities, and provided for notice to counties.
The pernicious effect of this language was to give Oil and Gas a reason to argue that their jurisdiction trumped local zoning jurisdiction. Despite assurances from state officials that this language was not intended to affect county zoning authority, in 2015 the NDIC intervened in a lawsuit in Dunn County on behalf of an oil and gas disposal company, arguing Dunn County did not have zoning jurisdiction because NDIC’s jurisdiction was exclusive.
State officials in North Dakota have waved around old Attorney General’s opinions on zoning authority, claiming state agencies have exclusive jurisdiction when it comes to regulating the oil and gas industry. These same state officials have, in my opinion, significantly stretched the legal conclusions from these opinions to claim greater jurisdiction for themselves.
My concern is that local governments in North Dakota have already been deprived of their fair share of the taxes from oil extraction, and now, in addition to a lack of resources, they are in danger of losing regulatory tools they have always had to ensure orderly and planned development in their communities.
I suggest local governments fight back.
Townships, cities and counties have a strong interest in enforcing their planning and zoning laws, particularly as those laws relate to the infrastructure development that comes with energy extraction.
While it might be true that local governments cannot require drilling permits for oil wells, there are many areas where they have regulatory jurisdiction, and in some cases, are not using it. For example, I have seen many access roads constructed in recent years with no approval or communication with local governing bodies responsible for regulating roads.
I have spoken to planners and regulators in some local governments and they are working to fill the gaps in their local ordinances, but I also think more can be done — and when it is, there will be fights over jurisdiction with the state. In my opinion, local governments should not shy away from this if they have the resources to defend their jurisdiction.