Fractured State of Affairs: St. Tammany Parish Government v. Welsh, Louisiana’s Opportunity to Weigh in on Preemption of Municipal Regulation Touching Oil and Gas Exploration

Introduction

One need only perform a simple Google search to quickly see the growing volume of ink being spilled at the national level regarding oil and gas exploration, and the modern practice of hydraulic fracturing.  Although hydraulic fracturing is nothing new[1], the increasing amount of oil and gas production coming from shale formations[2] found in regions not previously associated with oil and gas activity has made the practice an issue of current debate. The oil exploration and production industry’s expansion into these new and different communities is often a cause for public outcry, which is accompanied by municipal knee-jerk reactions when news breaks that an oil and gas company is hoping to commence operations within a given area.  Hoping to exclude oil and gas operations, some municipalities resort to the use of zoning ordinances to hamstring oil and gas development operations within their boundaries.  Disputes arising as a result of this behavior implicate the legal doctrine of preemption.  One such dispute recently arose in Louisiana’s St. Tammany Parish, where news that a proposed test well is to be drilled has given rise to public outcry, and the initiation of a lawsuit seeking to have the parish’s zoning laws recognized as a functional barrier preventing oil and gas operations without approval at the parish level.  The lawsuit brings to the forefront the issue of preemption generally, but also touches on the interplay between the differing levels of municipal authority granted to political subdivisions within the state and constitutional issues pertaining thereto.

This paper will explain the issue of preemption between the municipal and state authority in the context of oil and gas exploration and drilling by considering both the development of the preemption doctrine, and its practical application to present day disputes. Part I will look at the typical structure of how states delegate power to municipal subdivisions as well as the general principles of the doctrine of preemption.  Part II will examine how issues of preemption in the context of oil and gas regulation have been addressed by other states.  Part III will explore how Louisiana courts have addressed preemption, considering both state oil and gas laws, and the state constitutional themes underlying the outcomes of these decisions.  Part IV will then look at the recently commenced case of St. Tammany Parish Government v. Welch by discussing both the factual circumstances that gave rise to the dispute and proceeding to lay out some of the arguments set forth by the parties. Part V will analyze the arguments in the St. Tammany Parish Government v. Welch case against the backdrop of the case law and constitutional considerations. This paper will conclude by demonstrating why St. Tammany Parish’s attempt to have its zoning laws recognized as limiting the ability of a party seeking to conduct exploratory drilling operations, must surely fail in the face of current Louisiana law.

I: Municipal Structure and the Doctrine of Preemption

A. Home Rule and Legislatively Created Municipalities

While most states take a somewhat uniform approach to the regulation of oil and gas activities, outcomes have varied when state level oil and gas regulations are weighed against efforts of municipalities to exercise their own control.[3] This often results from a bifurcation in the classification of powers delegated to a municipal or sub-state unit.[4]  Before the mid twentieth century, only the more densely populated municipalities received a grant of police power sufficient to engage in land use regulation.[5]  Other sub-state units located in the more rural areas of a state typically did not have the authority to engage in land use regulation of their own.[6]  This distinction stemmed from some municipalities receiving what is commonly referred to as home rule authority, while other more rural areas retained what is known as general law authority.[7]

Home rule authority is granted by specific provision within a state’s constitution,[8] or through some other express grant of legislative authority.[9] In its most general sense, this grant of authority vests a municipality with the full police power of the state, such that the municipality may pass its own laws and regulations pertaining to autonomous self-government.[10] Home rule powers are sometimes further categorized as being either preemptable or non-preemptable, with the majority of municipalities being classified as the latter.[11]  With the authority to undertake zoning and land use regulation existing as a function of the police power,[12] some municipalities have attempted to use this power to pass land use ordinances and zoning legislation in an effort to exclude oil and gas activities from within their borders. However, legislatively created municipalities with general law authority do not enjoy the freedoms of home rule municipalities, and can only engage in the actions expressly permitted by state law.[13]  This means that the structure and operation of a legislatively created municipality is strictly prescribed at the state level and the municipality is not free to pass ordinances and regulations relating to independent self-governance absent a direct grant of such power.[14]  This is unlike the quasi-federalist approach to the relationship between home rule municipalities and the state level government.

A common example of state-level oil and gas legislation will establish an administrative body tasked, under an exercise of the state police power, with the regulation of all issues pertaining to oil and gas operations.[15] Some of these statutes contain language whereby the state legislature either expressly or impliedly preempts municipalities and sub-state units from engaging in concurrent regulation of oil and gas operations.[16]

B. The Doctrine of Preemption[17]

To say that all litigation arising out of municipal attempts to concurrently regulate oil and gas operations is controlled by the doctrine of preemption would be to paint with too broad of a brush, the doctrine of preemption is the general analytical framework by which the majority of these disputes are resolved.  The doctrine of preemption creates a statutory hierarchy between potentially conflicting statutes enacted by various levels of government sharing at least some portion of overlapping jurisdiction.[18]  The doctrine provides that laws enacted by higher levels of government will be given priority, and laws enacted by lower levels of government must yield. This renders the laws of the lower level of government unenforceable to the extent they are in conflict with the laws promulgated by the higher level of government.[19] Initially developed at the federal level, the concept of preemption not only exists in situations for which it has been expressly provided, but also exists by implication.[20]  This additional concept of “implied preemption” has been further bifurcated into what are commonly referred to as “conflict preemption” and “field preemption.”[21]

Express preemption derives from the well-established concept that Congress, subject to federal constitutional limits, may enact legislation that preempts state authority by “so stating in express terms.”[22] However, things are not always as straightforward as they seem and courts still find themselves embroiled in the task of statutory interpretation to ascertain the full intent of the legislature in disputes between states and their municipal subdivisions.[23] In recent years, disputes regarding express preemption in the context of oil and gas development have arisen when a municipality, rather than pass directly conflicting legislation in an attempt to regulate oil and gas activity, passes legislation that only tangentially burdens these activities.[24]

At the federal level, conflict preemption exists in situations “where Congress has not entirely displaced state regulation in a specific area…”[25] In such a situation the doctrine provides that “…state law is preempted to the extent that it actually conflicts with federal law. Such a conflict arises when ‘compliance with both federal and state regulations is a physical impossibility.’”[26]  Alternatively, field preemption exists when “[a]bsent explicit preemptive language, Congress’ intent to supersede state law altogether may be found from a ‘scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it,’ ‘because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,’ or because ‘the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.’”[27]

The same way the federal government is an amalgamation of independently governed states, individual states are comprised of sub-state municipal units created by state statutes and state constitutions.  Therefore, resolving disputes between states and the political subdivisions has mirrored the federal approach to preemption, and most states have adopted the same tripartite approach to determining when issues of preemption between state and local laws exist.[28]

II: Oil and Gas Preemption Disputes Outside of Louisiana

A. New York

One example of an express preemption dispute is the case of Envirogas, Inc. v. Town of Kiantone.[29] In this case, the Town of Kaintone, New York, passed an ordinance requiring all oil and gas drillers to post a $2,500 compliance bond and pay a $25 permit fee to the local municipality.[30]  The ordinance was challenged by an oil and gas company operating a well within the municipality on the grounds that the imposition of such additional permitting requirements violated the express preemption language of § 23-0303(2) of the New York Environmental Conservation Law (ECL).[31]The town took the position that under the savings provision of §23-0303(2), concerning local roads, the ordinance was not preempted, arguing that the bond and permitting fees were related to the deposit of hazardous materials on roadways within the town.[32]  The court disagreed with the town’s argument, striking down the local ordinance as arbitrary, capricious and in conflict with state law, and further enjoining the town from enforcing the ordinance.[33]  In arriving at this decision, the court stated, “[T]he State Legislature clearly intended Article 23 of the ECL to supersede and preclude the enforcement of all local ordinances in the area of oil and gas regulation.”[34]

Envirogas was not the final word on preemption and local ordinances opposing oil and gas exploration in New York. In Norse Energy Corp. v. Town of Dryden,[35] an oil and gas producer challenged a zoning ordinance that purportedly banned all activities related to oil and gas exploration, production and storage on the grounds that such an ordinance was preempted by the Oil, Gas and Solution Mining Law[36] (OGSML).[37]  The court also looked to Article IX, § 2[c] of the New York Constitution, which grants every local government the “power to adopt and amend local laws” in a manner “not inconsistent with the constitution or any general law relating to its property, affairs or government.”[38]  Included within this constitutional grant of authority is the power to engage in regulation of land use through the enactment of zoning laws.[39]

Although the OGSML contained an express supersession clause preempting local laws and ordinances relating to the regulation of oil, gas and solution mining, the court looked at the legislative intent behind the OGSML, defining exactly what the legislature meant in using of the word “regulation.”[40]  In arriving at the conclusion that the preemption language of the OGSML did not expressly preempt the local zoning ordinance, the court opined that although the legislature’s intention was to ensure uniform standards and procedures with respect to the technical complexities of oil and gas mining, there was no discernable legislative intention to usurp the authority delegated to the local government for establishing permissible and prohibited uses of land within its jurisdiction.[41]  The court further expressed that this interpretation of the preemption language in the OGSML harmonized the statute and the local legislation, avoiding abridgment of the town’s power to regulate lands within its jurisdiction through the use of zoning.[42]

The court next turned to an analysis of whether the municipal zoning ordinance was impliedly preempted. The court held that “[w]hile the existence of an express preemption clause in a statute supports a reasonable inference that the Legislature did not intend to preempt other matters…” such a clause does not “…entirely foreclose any possibility of implied preemption.”[43]  Having already reached the conclusion that the zoning ordinance was not expressly preempted, the court also held that the ordinance was not impliedly preempted, finding that the ordinance did not conflict with either the language or the policy underlying the OGSML.[44]

Concluding its thorough analyses of the other preemption doctrines, the Norse court looked to determine whether the zoning ordinance must yield under the doctrine of conflict preemption.[45]  Under this analysis, the court looked at whether the zoning ordinance presented an exercise of local police power inconsistent with the New York Constitution or general laws.[46]  In disposing of the issue, the court stated that the policy of the OGSML is to protect the rights of all persons including landowners and the general public, not just the owners of oil and gas properties, and that this goal is best served where individual municipalities have the freedom to determine whether drilling activities are appropriate.[47]

B. Ohio

An Ohio case arrived at a result different from New York’s cases. In State ex rel. Morrison v. Beck Energy Corporation,[48] the city brought an injunction suit against an oil and gas company operating pursuant to a permit issued by the Ohio Department of Natural Resources (ODNR).  The city argued that the oil and gas company did not comply with the city’s ordinances requiring secondary permits for drilling, zoning and right-of-way construction.[49]  The oil and gas company reconvened arguing that Ohio Revised Code §1509.02 granted the “…sole and exclusive authority to regulate the permitting, location, and spacing of oil and gas wells and production operations within the state…” excepting only activities regulated by the federal EPA or other Ohio laws.[50]  Under the Ohio Constitution, municipalities are granted “…the authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.[51]  This constitutional provision effectively vests Ohio municipalities with home-rule authority to engage in self-governance. [52]

In resolving the issue, the Ohio court engaged in a three part analysis to determine whether the ordinance being challenged would be preempted under state law, or alternatively receive deference, and thus be allowed to stand in the face of conflicting state level legislation.[53] The first step of the analysis looked to determine whether the challenged ordinance implicated a municipal exercise of local self-government.[54]  If the ordinance was found to be an exercise of self-government, then the inquiry would end, and the ordinance would be allowed to stand.  However, if the ordinance was determined to implicate matters of public health, safety, or general welfare, then the ordinance would be deemed an exercise of the municipality’s police power and further analysis would be needed. This continued analysis would require the reviewing court to make a determination as to whether the potentially conflicting state statute was a general law.[55] Under Ohio law, a “general law” is determined under a four part test.[56]  To be a general law the statute

“must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally.”[57]

The third and final step of the home rule analysis applied by Ohio courts would only be undertaken when the municipal ordinance was determined to be an exercise of police power, and the state statute was determined to be a “general law.”[58]  In such a case the inquiry would be resolved by determining if the municipal ordinance was in conflict with the state statute, such that “the ordinance prohibits that which the statute permits, or vice versa.”[59]

In applying this analysis to the facts of the case, the Ohio court determined that enactment of zoning legislation was inherently an exercise of municipal police powers, and further that Ohio conservation laws were properly categorized as general laws.[60]  The court ultimately found that the provisions within the challenged municipal ordinances governing rights of way did not conflict with the R.C. §1509.2, because included within the state statute was a savings provision, which explicitly reserved such authority to municipalities.[61]  However, the court found that the municipal ordinances that purported to regulate drilling operations, impose additional permitting requirements, and require additional public hearings, were in conflict with R.C. §1509.2 and therefore unenforceable against individuals attempting to engage in oil and gas operations.[62]

III:  Preemption Doctrine in Louisiana

A. Louisiana Constitutional Issues Pertaining to Preemption

Constitutional implications relating to preemption of local legislation are of great importance in Louisiana.  The constitutional provisions governing the powers and administration of local governments are found primarily within Article VI of the Louisiana Constitution of 1974.  The constitution classifies municipal subdivisions of the state into two classes, those with home rule charters and those without.[63]  In Louisiana, municipal subdivisions without a home rule charter, referred to as legislatively created municipalities, are given a grant of power such that they “…may exercise any power and perform any function necessary, requisite, or proper for the management of its affairs, or not denied by its charter or by general law.”[64]  As used in the context of Article VI of the Louisiana Constitution, “general law” is defined as “a law of statewide concern enacted by the legislature which is uniformly applicable to all persons or to all political subdivisions in the state or which is uniformly applicable to all persons or to all political subdivisions within the same class.”[65]

The authoritative framework applicable to municipalities that have adopted a home rule charter is itself bifurcated into two distinct categories; those municipalities with home rule charters adopted before the 1974 revision to the constitution, and those municipalities that adopted home rule charters in the time since the revision.[66]  The pre-1974 home rule municipalities are given a grant of authority, such that “[e]xcept as inconsistent with this constitution, each local governmental subdivision which has adopted such a [pre-1974] home rule charter or plan of government shall retain the powers, functions, and duties in effect…” as of the time of adoption of the amended constitution.[67]  The grant of authority to post-1974 home rule charter municipalities is somewhat narrower in that the powers of the municipality “may include the exercise of any power and performance of any function necessary, requisite, or proper for the management of its affairs, not denied by general law or inconsistent with this constitution.”[68]

Before addressing the interplay of how these constitutional provisions have been applied by Louisiana courts, there are two additional constitutional provisions integral to the discussion at hand.  The first of these provisions is found in Article VI, § 17, which provides that “[s]ubject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning and historic preservation, which authority is declared to be a public purpose.”[69]  The second of these additional provisions is found in Article VI, § 9, and provides that “[n]otwithstanding any provision of this Article, the police power of the state shall never be abridged.”[70]  Keeping the aforementioned constitutional provisions in mind, it is now time to look at the Louisiana statute which arguably serves to preempt political subdivisions of the state from exercising their limited grants of police power to interfere with oil and gas operations within the state.

B. Preemption Under Louisiana Revised Statutes 30:28

Louisiana Revised Statutes 30:28 sets forth the comprehensive rules concerning the issuance of drilling permits to parties who wish to undertake oil and gas drilling within the state.[71]  The statute begins with the decree that “[n]o well or test well may be drilled in search of minerals without first obtaining a permit from the commissioner of conservation.”[72]  Subsection D of the statute further outlines the procedure by which the commissioner is to carry out this permitting authority.[73]  Included in this list are specific rules concerning how the commissioner should proceed in the event that there is a residential or commercial structure in close proximity to the proposed drilling site.[74]  In this situation, the statute identifies the specific procedures for allowing the property owners potentially affected and the local government authority to voice concerns and solicit public input through a hearing.[75]  After conducting a hearing, the commissioner “shall” consider the comments and information presented the hearing.[76]  Only after satisfying the prescribed steps, can the commissioner exercise his discretion and decide whether to issue a permit.[77]

The statute then states that “[t]he issuance of a permit by the commissioner of conservation shall be sufficient authorization to the holder of the permit to enter upon the property covered by the permit and to drill in search of minerals thereon.”[78]  The statute continues, “No other agency or political subdivision of the state shall have the authority, and they are hereby expressly forbidden, to prohibit or in any way interfere with the drilling of a well or test well in search of minerals by the holder of such a permit.”[79]  In discussing preemptive language of Louisiana Revised Statues 30:28(F), one commentator is of the belief that “[w]hen it comes to express statements of state preemption relating to oil and gas regulatory matters, Louisiana is the one state with the clearest and most wide-ranging preemption language.”[80]

While the preemptive language currently found in Louisiana Revised Statutes 30:28(F) has remained substantively unchanged since its enactment in 1959, there is very little in the way of reported case decisions interpreting its scope.[81]  Two major cases interpreting the preemptive text of the statute serve as indications that the scope of preemption implemented by the statute is quite broad.[82]Additionally, this topic has also been addressed numerous times by the Louisiana State Attorney General’s office in the form of opinions interpreting the scope and permissible grounds for local governments to enact local legislation that could impact oil and gas drilling operations.[83]

C. Louisiana Case Law Concerning Preemption Under Louisiana Revised Statutes 30:28

1. Greater New Orleans Expressway Com’n v. Traver Oil Company^[84]

The first case in which a Louisiana court had the opportunity to analyze the scope of Louisiana Revised Statutes 30:28(F) arose in an suit filed by an administrative commission to enjoin an oil and gas exploration and production company from acting under a permit granted to them by the commissioner of conservation.[85]  Traver Oil Company held a state lease covering a certain portion of the bottom of Lake Pontchartrain and had been granted a permit to engage in drilling operations at a location approximately one quarter of a mile from the Lake Pontchartrain Causeway.[86]  The plaintiffs in the suit sought to enjoin the operations of Traver, citing the potential for a hazard to public safety that could result from conducting drilling operations in such close proximity to the Causeway bridge.[87]  In response, Traver took the position that the plaintiffs had no right of action to seek such injunctive relief, pointing to Louisiana Revised Statutes 30:204(F), the substantively identical predecessor statute to Louisiana Revised Statutes 30:28(F).[88]  Without going into a thorough discussion of the purpose and scope of 30:204(F), the court took the position that “[t]he main purpose of these statutes is to prevent any state agencies other than the Department of Conservation from establishing other permit requirements applicable to those with a Department of Conservation permit.”[89]  Ultimately, the court came to the conclusion that, although 30:204(F) precluded additional permitting burdens from being placed upon the holder of a valid drilling permit issued by the Commissioner of Conservation, the statute did not foreclose upon the possibility of third parties bringing actions to enjoin execution upon such permits in the interest of public safety or welfare.[90]

2. Energy Management Corp. v. City of Shreveport [91]

In 2005, the preemptive scope of Louisiana Revised Statutes 30:28(F) was passed upon by a federal court in the context of a municipal ordinance purporting to impose a strict regulatory scheme on oil and gas operations located near the city’s primary potable water supply.[92]  In this case, Shreveport, a home rule municipality, passed Ordinance 221 for the purpose of preventing new oil and gas drilling within 1,000 feet of Cross Lake, and further imposed a strict regulatory scheme to govern new drilling operations between 1,000 and 5,000 feet of the lake.[93]  Energy Management Corporation (EMC) brought suit complaining that Shreveport was without authority to regulate drilling operations in the manner prescribed by Ordinance 221.[94]  The primary argument raised by EMC took the position that Ordinance 221 was impermissible in that the authority to regulate oil and gas operations was exclusively within the purview of the state, and as such Ordinance 221 was preempted by “Louisiana’s comprehensive regulation of such activities and the statutory prohibition of local regulation of drilling operations.”[95]

Siding with EMC, the United States Fifth Circuit Court of Appeals first looked to the Louisiana Supreme Court’s pronouncement of the criteria to be considered for determining whether an attempted exercise of local police power was preempted by state legislation.[96]  In Louisiana,

“[l]ocal power is not pre-empted unless it was the clear and manifest purpose of the legislature to do so, or the exercise of dual authority is repugnant to a legislative objective; if there is no express provision mandating pre-emption, the courts will determine the legislative intent by examining the pervasiveness of the state regulatory scheme, the need for state uniformity, and the danger of conflict between enforcement of local laws and the administration of the state program.”[97]

The court avoided a determination as to whether the language of 30:28(F) expressly preempted municipal exercises of authority such as those contained within Ordinance 221. Alternatively, the court undertook a review that more closely resembled a field preemption analysis, noting the comprehensive and pervasive nature of the statutory scheme under which the Louisiana Office of Conservation operates.[98]  The court further noted that “[i]n every case which has been brought to [the court’s] attention involving a challenge to the authority of the LOC, its far-reaching authority has been upheld.”[99]  Additionally, as a matter of practicality, the court determined that enforcement of Ordinance 221 would operate to nullify the LOC’s authority to exercise its discretion for the granting or denial of drilling permits for drilling and exploration activities such as those sought to be undertaken by EMC.[100]

Another fact particular to this case, potentially adding to its importance when considering Louisiana preemption doctrine, is that Shreveport is classified as a home rule municipality, a distinction that can be important under Louisiana law.[101]  Unfortunately, the court passed upon the opportunity to lay down an explicit ruling as to the interplay between home rule and state legislation in the context of the police power.  The court did however hint as to an inclination on this issue, stating in dicta that the court was not convinced such a municipal attempt to legislate would stand in the face conflicting state regulation.  The court ultimately did not need to rule as to the home rule issue, finding that the territory sought to be regulated under Ordinance 221 did not fall within the territorial jurisdiction of Shreveport’s home rule charter.[102]

3. Louisiana Attorney General Opinions

Dating as far back as 1962, the Louisiana Attorney General’s office has taken and maintained the position that neither local parish governing bodies, nor any other political subdivisions of the state may enact legislation attempting to interfere with the holder of a valid drilling permit issued by the Commissioner of Conservation.[103]  In 1962, the Attorney General took the position that “[p]olice juries have no authority to compel oil companies to procure parish permits before commencement of oil operation…”[104]  In 1981, in response to an attempt by the St. Landry Parish Police Jury to pass an ordinance requiring that any party seeking to drill or mine for coal, oil, or gas first obtain a permit from and post bond with the Police Jury, the Attorney General took the position that such an attempt would be in direct “contravention of the prohibition contained in La. R.S. 30:204(B).”[105]  Recognizing the underlying purpose of St. Landry Parish in attempting to pass such legislation, the opinion held open the possibility that the parish could enact an ordinance pertaining to regulation of large industrial vehicle traffic using parish roads and bridges so long as such an ordinance was not discriminatory to the oil and gas industry alone.[106]

In 1988, the question arose again when Louisiana State Senator, Allen Bares,[107]sought an opinion from the Attorney General as to whether Evangeline Parish could pass an ordinance requiring that those engaged in oil and gas drilling first obtain from the parish governing body a permit to use public roads and bridges situated within the parish.[108]  The Attorney General again turned to Louisiana Revised Statutes 30:204(B) as authority for the position a parish governing body cannot regulate the drilling of oil wells or test wells, but that it could however, regulate the use of parish roads and bridges so long is did not do so in an arbitrary or discriminatory manner.[109]

In 1989, and again in response to an inquiry by a State Senator, the question was posed as to whether or not an agency or local political subdivision of the state could validly enforce its zoning ordinances to prevent oil and gas drilling activities when the oil and gas company seeking to operate is in possession of a valid drilling permit from the Commissioner of Conservation.[110]  Specifically mentioned in the opinion was the fact that the drilling location giving rise to this inquiry was none other than Cross Lake, which as discussed above was the property at the center of the later dispute in Energy Management Corp. v. City of Shreveport.[111]  Arriving at the conclusion that Louisiana Revised Statutes 30:204(B) served to preempt local zoning ordinances, the Attorney General’s Opinion conducted an in depth analysis of Louisiana Constitutional provisions granting political subdivisions of the state their powers and governing the interplay between state and local legislation.[112]

While these opinions of the Attorney General are not controlling authority, they should at the very least be considered persuasive. The interpretation of Louisiana Revised Statutes 30:28(F) and its predecessor have been consistently treated as preempting any attempt by subdivisions of the state to use their limited grant of legislative power to directly interfere with the ability of a person in possession of a drilling permit issued by the Commissioner of Conservation.

D. Other Important Louisiana Cases Touching on the Issue of Preemption in Oil and Gas Operations

1. City of Baton Rouge v. Hebert [113]

In City of Baton Rouge v. Hebert, a suit was brought by the city of Baton Rouge, a home rule municipality, in an attempt to enjoin an operator of a petroleum well from allegedly violating zoning regulations within the city’s jurisdictional boundaries.[114]  This case, while expressly resolved in a narrow holding based on grounds other than through a complete determination of preemption,[115] is a rare instance where a court found that although many aspects of petroleum operations in the state are exclusively within the jurisdiction of the state,[116] on the facts particular to this case the state’s preemption of this field did not extend so far as to deprive the city of enforcing its land use regulations inside of its territorial jurisdiction.[117]

At first blush, this case seems to support an assertion that home rule municipalities should retain the power to enforce their zoning regulations that are potentially in conflict with state oil and gas laws.  However, the court did make note of one essential fact that serves to undercut such an argument.  The court acknowledged that what was ultimately at issue in this case was the conflict between a zoning ordinance and an attempt by an oil and gas company to place new oil storage tanks on a site. The court found that this was distinguishable from a dispute that may have arisen as to the siting for the drilling of an oil well, stating “[w]e note too that the tanks, though essential for the production from the well, do not have to be located on the well site.”[118]  It is this distinction, the fact that while an essential element of oil and gas drilling operations, above ground storage tanks do not necessarily need to be sited at the same location as the well from which the oil was produced, which although not expressly so, still speaks to the fundamental theme supporting the concept of zoning generally.[119]  The fact that oil storage tanks could theoretically be placed in any location without unduly burdening the activities of drilling for and production of oil and gas makes this case entirely distinguishable from a case in which a municipality is attempting to rely on a zoning ordinance to prevent oil and gas drilling operations entirely.

2. Vanguard Environmental, LLC v. Terrebonne Parish Consolidated Government [120]

In the case of Vanguard Environmental, LLC v. Terrebonne Parish Consolidated Government, a parish government implemented an ordinance requiring anyone wishing to engage in operation of an injection disposal facility for the disposal of oil and gas exploration and production fluids must comply with rules requiring a one mile setback from any neighboring structure used as a residence or business.[121]  Further, the ordinance required an application to be submitted to and approved by the parish, and that a permit issued from the Commissioner of Conservation, on its own would be insufficient to satisfy the ordinance in the manner that the parish sought to enforce it.[122]  Vanguard Environmental, the company seeking to engage in the drilling and operation of the injection disposal well, obtained a permit from the Commissioner of Conservation and sought to begin operations.[123]  Prior to commencing operations, the parish government notified Vanguard that the company’s proposed well was not in compliance with parish law, and that the parish would take action to prevent Vanguard from commencement of operations until compliance was obtained.[124]  In response to this letter, Vanguard brought suit against the parish.[125]

This case is important in the context of Louisiana preemption doctrine insofar as it was decided not under Louisiana Revised Statutes 30:28, but rather was decided through an application of Louisiana Constitutional law and the statutes enabling the Commissioner of Conservation to undertake his duties.  In resolving the dispute, the court first looked to Article IX, § 1 of the Louisiana Constitution, which provides that “[t]he natural resources of the state … shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people.”[126]  Further, the constitutional article provides the command that “[t]he legislature shall enact laws to implement this policy.”[127]  The court noted that it is pursuant to this constitutional mandate that the state legislature enacted laws to ensure an effective coordination between environmental control regulations at both the state and federal levels,[128] and it is this “extensive body of law that addresses every phase of the oil and gas exploration and drilling phases”[129] found in Louisiana Revised Statutes 30:1 et seq.[130] The Court reached the ultimate conclusion that the ordinance sought to be enforced by the parish was unconstitutional, holding that the regulation of the well at issue, including issues pertaining to siting of such a well, fell within the exclusive jurisdiction of the Office of Conservation and that under the “express terms of our pertinent statutory law and regulations” the legislature had manifested a clear “intention to preempt the field in its entirety.”[131]

IV: A Chance to Rule on Preemption of Local Oil and Gas Regulation

A. St. Tammany Parish Government v. Welsh

On June 16, 2014, the St. Tammany Parish Government filed a lawsuit for both declaratory and injunctive relief against the Louisiana Commissioner of Conservation. The suit was filed in response to the submission of a unitization plan by Helis Oil and Gas for the creation of a drilling and production unit for the exploration and production of oil and gas from the Tuscaloosa Marine Shale, Reservoir A, located near the town of Abita Springs, in St. Tammany Parish. Although a complete recitation of the facts concerning public sentiment and other ancillary matters surrounding this litigation is beyond the scope of this paper, it is necessary to cover the main elements of St. Tammany’s complaint in order to understand the core of the dispute and why the resolution of this litigation is of great importance to those involved in the oil and gas industry in Louisiana.

1. Claim for Injunctive Relief

The first issue, which doesn’t bear on the topic of this paper, concerns an attempt by a subdivision of the state to enjoin the Commissioner from the issuance of unitization orders concerning lands situated within St. Tammany Parish.[132] The primary argument asserted by St. Tammany to support a claim for injunctive relief stems from a report issued by the Louisiana Legislative Auditor concerning the Louisiana Office of Conservation identifying “numerous, critical deficiencies in the agency.”[133] St. Tammany contends that, as evidenced by the auditor’s report, the Commissioner is incapable of fulfilling his statutory duty to properly regulate and maintain any new oil and gas wells, and therefore until such time as the Commissioner can effectively carry out his duties he should be restrained from the issuance of any new unitization orders.[134]

2. Claim for Declaratory Relief

The second, and more pertinent issue of contention in St. Tammany’s suit concerns two main elements, both of which relating primarily to preemption.[135] These elements give rise to the following questions of law: (1) does St. Tammany Parish have the constitutional authority to promulgate ordinances that operate to constrain the ability of the Commissioner to grant exploration and production permits for lands situated with the parish; and (2) does St. Tammany Parish have authority under its Unified Development Code to entirely ban the practice of hydraulic fracturing within the parish?[136]

For the proposition that St. Tammany possesses constitutional authority, the parish cites Article VII, Section 17 of the Louisiana Constitution[137] in conjunction with Louisiana Revised Statutes 33:4776(A).[138] Focusing on Louisiana Revised Statutes 33:4776(A), St. Tammany points to a savings provision within the statute referencing the now repealed Act 518 of the 1954 session of the Louisiana Legislature as a foundation to the argument that St. Tammany’s authority to conduct zoning “for the purposes of promoting health, safety, morals or the general welfare of the community…” enjoys primacy over the authority of the Commissioner to issue permits.[139]  To bolster this position St. Tammany points to the cases of Folsom Road Civic Association. v. St. Tammany Parish[140] and Azalea Lakes Partnership, L.L.C. v. Parish of St. Tammany[141] as support that St. Tammany’s constitutionally vested zoning authority has long been recognized by the courts of this state.[142]

The second element of St. Tammany’s argument, which ultimately bears on the issue of preemption, deals with the parish’s Unified Development Code (UDC). The parish argues that, under the UDC, the current zoning classification of the land on which the proposed well site is to be placed does not allow for the land to be used for the drilling or operation of an oil and gas well.[143]  The parish further contends that Louisiana Revised Statutes 33:109.1 imposes a mandatory duty upon the Commissioner to consider the adopted master plan of St. Tammany Parish, of which the UDC is a subpart, prior to undertaking action that would affect the elements of such a master plan.[144] On August 29, 2014, the Commissioner issued Order No. 1577 approving the establishment of a drilling unit covering the proposed well site, prompting the parish to amend its initial petition to assert that Commissioner issued the Order in derogation of the zoning requirements of the St. Tammany UDC and therefore the Order should be declared invalid and of no effect.[145]

3. The State’s Response

On July 11, 2014, the State of Louisiana, through the Commissioner, filed a response to St. Tammany’s petition.[146]  The Commissioner filed exceptions of (1) no cause of action;[147] (2) prematurity;[148] and (3) lack of subject matter jurisdiction.[149]  While the exceptions of prematurity and lack of subject matter jurisdiction invoke issues of procedural law and jurisprudence in Louisiana, the Commissioner’s exception of no cause of action brings to the forefront the issue of preemption. In its exception of no cause of action, the state asserts that Louisiana Revised Statutes 30:28(F) and the jurisprudence concerning the general concept of preemption in Louisiana make it clear that the authority of the Commissioner to issue drilling permits supersedes conflicting local legislation.[150]  Also, embedded within the Commissioner’s exception of no cause of action are arguments pertaining to exhaustion of administrative remedies and ripeness.[151] Although potentially dispositive on the issue as to whether St. Tammany has actually stated a cause of action, to use either of these latter arguments would be to sidestep a larger issue.

V: Through the Looking Glass

A. St. Tammany’s Case Through the Lens of Louisiana Preemption Doctrine

Ignoring momentarily the reality that the court hearing this matter may avail itself of one of the procedural theories asserted to bring this litigation to a quick conclusion, this action presents an opportunity for a Louisiana state court to provide guidance on the second sentence of Louisiana Revised Statutes 30:28(F), and how far its prohibition of municipal interference with the execution of drilling permits actually extends.  At the heart of St. Tammany’s case is the assertion that the parish’s zoning ordinances should be allowed to stand and be enforced even in the face of a potential conflict with statewide law.  The determination of possible outcomes to this issue will require consideration of factors such as the municipal classification of St. Tammany Parish, interpretation of Louisiana constitutional provisions, and the legislative intent underlying the language of Louisiana Revised Statutes 30:28.

First, the municipal categorization of St. Tammany Parish is important because under Louisiana jurisprudence, the constitution only purports to grant the unfettered exercise of autonomous government, free from state legislative interference, to municipalities operating under home rule charters adopted prior to the 1974 revision to the Louisiana Constitution.[152] The St. Tammany Parish Government operates under a home rule charter adopted by vote of the parish citizens on October 3, 1998.[153]  This means that St. Tammany Parish does not enjoy the legislative freedom from state intervention found granted in Article VI, §4 of the Louisiana Constitution, but rather is subject to the more limited grant found within Article VI, §5.[154]  This means that St. Tammany may exercise its powers so long as doing so is “not denied by general law or inconsistent with this constitution.”[155]  Recalling the definition of “general law” provided from Article VI, § 44(5), it can then be objectively resolved prior to a determination as to whether Louisiana Revised Statutes 30:28 has any preemptive substance. That means if an ordinance of St. Tammany Parish is denied by a law “of statewide concern … uniformly applicable to all persons or to all political subdivisions within the same class” then the parish ordinance must yield in the face of positive state legislation concerning the same issue.[156]  This position finds further support under the general principle that the police power of the state “shall not be abridged.”[157]

Next, looking at the Louisiana First Circuit Court of Appeal’s recent decision in the Vanguard Environmental case shows that the courts are currently comfortable with the prospect of upholding the “pervasive and clearly manifest” legislative intention underpinning Louisiana Revised Statutes 30:1 et seq. to preempt attempts by political subdivisions of the state to concurrently regulate issues pertaining to oil and gas operations.[158]  Again, in support of this position is the decision from the Federal Fifth Circuit Court of Appeals in the Energy Management Corporation case, wherein the Court upheld a finding that Louisiana Revised Statutes 30:28(F) preempts attempts by political subdivision of the state to invoke land use regulations as a tool for preventing a locally unpopular decision of the Commissioner of Conservation from being carried into fruition.[159]

Additionally, the parish’s argument that Louisiana Revised Statutes 33:109.1 imposes a mandatory duty upon the Commissioner of Conservation to consider the adopted master plan of St. Tammany Parish also raises a few interesting points.[160]  First, it is important to note that, as of the writing of this paper there have been no recorded judicial decisions interpreting the meaning or proper application of the statute.  Second, Louisiana Revised Statutes 33:101, the definitional statute found at the beginning of the section in which Louisiana Revised Statutes 33:109.1 is found, defines a master plan as “a statement of public policy for the physical development of a parish or municipality adopted by a parish or municipal planning commission.”[161]  Reading these two statutes together in the absence of any jurisprudence interpreting them otherwise, would seemingly undermine the use that St. Tammany is purporting to assign in that while St. Tammany’s UDC may have been adopted pursuant to a master plan, the UDC itself is not a part of the master plan but rather a set of rules adopted to execute upon the master plan.  It is the opinion of this writer that Louisiana Revised Statutes 109.1 serves to require the state agencies to merely consider the overall policy goals that a planning commission seeks to achieve through the adoption of a master plan not the specific set of rules by which the municipality has selected for execution of the plan.  In any event, the plain language of 109.1 only requires that the head of a state agency, such as the Louisiana Commissioner of Conservation, give consideration to adopted master plans, the language does not require the Commissioner to defer entirely to such local level determinations while carrying out his duty for the benefit of the citizens of Louisiana as a whole.

Finally, it is the opinion of the writer that it was the intention of the legislature when crafting Louisiana Revised Statutes 30:28(F) to expressly preempt any effort by subservient units of government from interfering with the holder of a validly issued drilling permit, precluding both directly conflicting municipal legislation and municipal legislation placing additional burdens upon such a person.  As identified in the above analysis of City of Baton Rouge v. Hebert[162], there is a distinction that may be drawn between those zoning ordinances that may only tangentially burden a party authorized by an act of the Commissioner, and those zoning ordinances that run the risk nullifying decisions of the Commissioner related to ensuring that the natural resources of the state are adequately and effectively developed.  Unlike storage tanks and many of the other above ground structures that may accompany oil and gas drilling operations, an oil well, for practical purposes can only be drilled in one place, that place being the location almost directly overlying the subsurface oil or gas deposit.  It is for this reason that allowing the piecemeal use of zoning ordinances to prospectively determine from the municipal level, how the state’s interest in efficient development of oil and gas resources would be best achieved is unworkable.  Allowing otherwise would permit, if taken to the extreme, a potential for all of the parishes within the state to ban some, or all, aspects of oil and gas operations.  Such a result would serve to undermine not only the principles espoused by the legislation empowering the Commissioner of Conservation to ensure that the natural resources of the state are utilized effectively and efficiently, but also undermine the police power of the state by allowing subservient units of government to pass laws having the practical effect of unilaterally nullifying the acts of the Commissioner.  Such a situation cannot be sanctioned as both of the foregoing scenarios are in complete contradiction to the express statements of the Louisiana Constitution.

Conclusion

In Louisiana, municipal level governments exist in essentially three separate classifications: (1) legislatively created, enjoying only such governing authority as has been expressly delegated; (2) post-1974 home rule municipalities, enjoying a level of autonomous self-government as are not in conflict with the state constitution or general law; and, (3) pre-1974 home rule municipalities, which enjoy what has been interpreted as practically absolute autonomy in all things pertaining to their government standing on what is almost equal footing with the state in their ability to legislate and enforce their own laws.  Additionally, Louisiana courts seemingly deal with the concept of preemption by conducting an analysis in each case of whether a statute is expressly preemptive, or if preemption can be supported through either a field preemption or conflict preemption analysis.[163] Also, issues concerning the enforcement of, and purpose behind zoning ordinances necessarily implicates a consideration of police power and the Louisiana Constitutional provisions concerning conflicting exercises thereof.

Policy and politics aside, Louisiana law, jurisprudence, and attorney generals’ opinions make it clear the Commissioner of Conservation should prevail in the St. Tammany suit.  To uphold the preemptive language of Louisiana Revised Statutes 30:28(F) as precluding interference with anyone seeking to conduct drilling would be in proper keeping with the jurisprudence concerning preemption in the context of oil and gas related operations in Louisiana.  With the issue of fracking leading to such polarizing differences in opinion, perhaps it is time for pressure to be put on the legislature to clarify and take a more definite stance on how issues such as that in St. Tammany should be resolved.

Preferred Citation: Geoffrey Hingle Jr.,   Fractured State of Affairs: St. Tammany Parish Government v. Welsh, Louisiana’s Opportunity to Weigh in on Preemption of Municipal Regulation Touching Oil and Gas Exploration, LSU J. Energy L. & Res. Currents (March 25, 2015), https://jelr.law.lsu.edu/?p=1181.

[1] Carl T. Montgomery & Michael B. Smith, Hydraulic Fracturing: History of an Enduring Technology, 62 JPT 26 (December 2010).

[2] U.S. Dept. of Energy, How is Shale Gas Produced, (April 2013) http://www.enegy.gov/sites/prod/files/2013/04/ f0/how_is_shale_gas_produced.pdf.

[3] See, Norse Energy Corp. v. Town of Dryden, 964 N.Y.S.2d 714 (Sup. Ct. 2013); State ex rel. Morrison v. Beck Energy Corp., 2013-Ohio-356, 989 N.E.2d 85 appeal allowed, 2013-Ohio-2512, 135 Ohio St. 3d 1469, 989 N.E.2d 70.

[4] Bruce M. Kramer, The State of State and Local Governmental Relations as it Impacts the Regulation of Oil and Gas Operations: Has the Shale Revolution Really Changed the Rules of the Game?, 29 J. Land Use & Envtl. L. 69, 70 (2013).

[5] Bruce M. Kramer, Local Land Use Regulation of Oil and Gas Development: Pumpjacks and Preemption, 56 Ann. Inst. On Min. L. 198 (2009).

[6] Id.

[7] Id.

[8]  See also, La. Const. Art. VI, § 5.

[9] Osborne Reynolds, Local Government Law 35-39 (West 2d ed. 2001).

[10] Id.

[11] Kramer, supra note 5, at 199.

[12] Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926).

[13] Reynolds, supra note 9.

[14] Kramer, supra note 5, at 201.

[15] See, La. R.S. 30:1 et seq (1978).

[16] La. R.S. 30:28(F) (2009). See also, Ohio R.C. § 1509.02 (2013).

[17] Bryan A. Garner, Black’s Law Dictionary 1369 (West 10th ed. 2014), defines preemption as “[t]he principal derived from the Supremacy Clause that a federal law can supersede or supplant any inconsistent state law or regulation.”

[18] Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 964 A.2d 855, 862 (Pa. 2009).

[19] Keith B. Hall, When Do State Oil and Gas or Mining Statutes Preempt Local Regulations?, 27 Nat. Resources & Env’t 13 (2013).

[20] Kramer, supra note 4, at 84.

[21] Id.

[22] Pacific Gas and Elec. Co. v. State Energy Resources Conservation & Development Com’n, 461 U.S. 190 (1983) (citing Jones v. Rath Packing Co., 430 U.S. 519 (1977)).

[23] See, Norse Energy Corp. v. Town of Dryden, 964 N.Y.S.2d 714, 723 (Sup. Ct. 2013); State ex rel. Morrison v. Beck Energy Corp., 2013-Ohio-356, 989 N.E.2d 85 appeal allowed, 2013-Ohio-2512, 135 Ohio St. 3d 1469, 989 N.E.2d 70.

[24] Id. An example of such legislation would be to perhaps require parties seeking to engage in oil and gas drilling to pay performance bonds.

[25] Pacific Gas, 461 U.S. at 204 (quoting Florida Lime & Avocado Groers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963)).

[26] Id.

[27] Id. at 203-04. (quoting Fidelity Federal Sav. And Loan Ass’n c. de la Cuesta, 458 U.S. 141, 151 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

[28] Kramer, supra note 4.

[29] Envirogas, Inc. v. Town Kiantone, 447 N.Y.S.2d 221 (Sup. Ct. 1982).

[30] Id. at 223.

[31] N.Y. Env. Law §23-0303(2) (2012) reads “The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the Real Property Tax Law.”

[32] Envirogas, 447 N.Y.S.2D at 222.

[33] Id. at 223.

[34] Id.

[35] Norse Energy Corp. v. Town of Dryden, 964 N.Y.S.2d 714 (Sup. Ct. 2013). See also, N.Y. Env. Law § 23 0301 et seq.

[36] Note that although subject to a different naming convention than that set forth in the Kiantone case, the state statute at issue in Norse is in fact the same statute analyzed by the Kiantone court.

[37] Dryden, 964 N.Y.2.2d.

[38] N.Y. Const. Art. IX,  § 2.

[39] Dryden, 964 N.Y.S.2d at 718.

[40] Id.

[41] Id. at 719.

[42] Id. at 721 (citing Matter of Frew Run Gravel Prods. v. Town of Carroll, 71 N.Y.2d 134).

[43] Id. at 723.

[44] Id.

[45] Id.

[46] Id.

[47] Id at 724.

[48] State ex rel. Morrison v. Beck Energy Corp., 2013-Ohio-356, 989 N.E.2d 85 appeal allowed, 2013-Ohio-2512, 135 Ohio St. 3d 1469, 989 N.E.2d 70.

[49] Id at 88.

[50] Id at 90.

[51] Ohio Const. art. XCIII, § 3.

[52] Id.

[53] State ex rel. Morrison, 989 N.E.2d at 92.

[54] Id.

[55] Id. at 93.

[56] Id.

[57] Id.

[58] Id. at 94.

[59] Id.

[60] Id. at 96.

[61] Id. at 97.

[62] Id. at 99.

[63] La. Const. Art. VI, § 7.

[64] Id.

[65] La. Const. Art. VI, § 44(5).

[66] La. Const. Art. VI, §4.

[67] Id.

[68] La. Const. Art. VI, § 5(E).

[69] La. Const. Art. VI, §17.  Here it is important to note that, at least in this writer’s opinion, by declaring that the exercise of land use and zoning regulations is a public purpose, the drafters of this article were attempting to make it clear that such an exercise of authority would be an exercise of the state police power.  This matters, because as initially set out in Village of Euclid, Ohio v. Ambler Realty Co., which held, inter alia, that zoning ordinances and other land use regulations must find their justification in some aspect of the police power asserted for the public welfare.  272 U.S. 365 (1926).

[70] La. Const. Art. VI, § 9(B).

[71] La. R.S. 30:28 (2009).

[72] La. R.S. 30:28(A) (2009).

[73] La. R.S. 30:28(D) (2009).

[74] Id.

[75] La. R.S. 30:28(D)(3)-(4) (2009).

[76] La. R.S. 30:28(D)(6) (2009).

[77] Id.

[78] La. R.S. 30:28(F) (2009).

[79] Id.

[80] Bruce M Kramer, Local Land Use Regulation of Oil and Gas Development: Pumpjacks and Preemption, 56 Ann. Inst. On Min. L. 198, 222 (2009).

[81] The language currently found in La. R.S. 30:28(F) was initially found in the predecessor statute La. R.S. 30:204(B), and while there have been amendments and reenactments of the statute over the years, the phraseology currently found in La. R.S. 30:28(F) has remained unchanged since its inception.

[82] See Greater New Orleans Expressway Com’n v. Traver Oil Co., and Energy Management Corp. v. City of Shreveportdiscussed below.

[83] See Attorney General Opinions discussed below.

[84] Greater New Orleans Expressway Com’n v. Traver Oil Co., 494 So.2d 1204 (La. Ct. App. 5^th Cir. 1986).

[85] Id. at 1205.

[86] Id.

[87] Id.

[88] Id. at 1207.

[89] Id.

[90] Id.

[91] Energy Management Corp. v. City of Schreveport, 397 F.3d 297 (5^th Cir. 2005).

[92] Id. at 299.

[93] Id. at 300.

[94] Id.

[95] Id. at 302.

[96] Id. at 303.

[97] Id. Citing, Palermo Land Co. v. Planning Commission of Calcasiue Parish, 561 So.2d 482, 497 (La. 1990).

[98] Id.

[99] Id. See also, Rollins Environmental Services of Louisiana Inc. v. Iberville Parish Police Jury, 371 So.2d 1127 (La. 1979) (LOC regulation and permit governing deep well disposal facilities preempted parish ordinance prohibiting disposal of hazardous waste within the parish.); Greater New Orleans Expressway Com. V. Traver Oil Co., 494 So.2d 1204 (La. App. 5^th Cir. 1986) (Causeway commission could not restrict drilling within one mile of Causeway Bridge contrary to authorization of LOC and Corps of Engineers.); Desormeaux Enterprises, Inc. v. The Village of Mermentau, 568 So.d 213 (La. App. 3^rd Cir. 1990) (Village ordinance prohibiting corporation from operating disposal facility on property if it received a permit from the commissioner of conservation found null and void.)

[100] Id. at 304.

[101] Id.

[102] Id. at 305.  The 5^th Circuit adopted the determination made by the lower court hearing the case that Cross Lake and the surrounding land had been deeded to Shreveport in such a way that the city’s authority to legislate regarding the property surrounding the lake was a grant of limited police power.

[103] Op.Atty.Gen., No, 12, 1962.

[104] Id.

[105] Op.Atty.Gen., No. 81-1087 (1981).  Recall that R.S. 30:204(B) was reenacted as R.S. 30:28(F) in 1997.

[106] Id.

[107] Notably, at the time this opinion was requested and rendered by the Attorney General’s office, Allen Bares was not merely a state senator, but was at the time the acting President of the State Senate.

[108] Op.Atty.Gen., 88-418 (1988).

[109] Id.

[110] Op.Atty.Gen., 89-416 (1989).

[111] Id.

[112] Id.

[113] City of Baton Rouge v. Hebert, 378 So.2d 144 (La. Ct. App. 1^st Cir. 1979).

[114] Id.

[115] Id. at 146.  The court resolved the ultimate issue of this case in favor of the oil and gas company finding that the placement of new tanks on the same tract where the oil well was located was a continuance of a non-conforming use and therefore allowable under the zoning scheme in place at the time the decision was rendered.

[116] Although a full blown preemption analysis was not discussed in the published opinion, it seems that the court was at least giving a tacit nod to the proposition that field preemption generally exists with respect to state regulation of oil and gas operation.

[117] Id.

[118] Id.

[119] Recall the case of Village of Euclid, Ohio v. Ambler Realty, which found that zoning ordinances were a proper exercise of the police power, serving to segregate incompatible land uses for the purpose of promoting the public welfare.  272 U.S. 365.

[120] Vanguard Environmental, LLC v. Terrebonne Parish Consolidated Government, No. 2012-1998, 2013 WL 4426508 (La. Ct. App. 1^st Cir. 2013).

[121] Id. at 1.

[122] Id.

[123] Id. at 2.

[124] Id.

[125] Id.

[126] La. Const. Art. IX, § 1.  Note the inclusion of the language referring to “health, safety, and welfare” so as to implicate that this mandate shall be carried out through an exercise of the state police power.

[127] La. Const. Art. IX, § 1 (emphasis added).

[128] Vanguard at 4.

[129] Id.

[130] Id.

[131] Id. at 5.

[132] Prayer from Plaintiff’s initial petition.

[133] Plaintiff’s petition for declaratory and injunctive relief, paragraph 33.

[134] La. R.S. 30:4(C)

[135] Plaintiff’s petition for declaratory and injunctive relief, paragraphs 26 and 37.

[136] St. Tammany petition

[137] La. Const. Art. VI, § 17 provides in pertinent part:

Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; … and (4) adopt standards for use, construction, demolition, and modification of areas and structures.  Existing constitutional authority for historic preservation commissions is retained.

[138] La. R.S. 33:4776(A)

[139] St. Tammany Petition paras. 27-28.  See also, Azalea Lakes Partnership, L.L.C. v. Parish of St. Tammany, 859 So.2d 57 (La. App. 1st Cir. 2003), Footnote 7.

[140] Folsom Road Civic Ass’n. v. St. Tammany, 407 So.2d 1219 (La. 1981).

[141] Azalea Lakes Partnership, L.L.C. v. Parish of St. Tammany, 859 So.2d 57 (La. App. 1st Cir. 2003).

[142] Plaintiff’s petition for declaratory and injunctive relief.

[143] Plaintiff’s First Supplemental Petition, paragraph 6.

[144] La. R.S. 33:109.1

[145] Plaintiff’s First Supplemental Petition.

[146] Conservation’s Exceptions to the Plaintiff’s Petition for Declaratory and Injunctive Relief

[147] The peremptory exception of no cause of action may be raised under La. C.C.P. art. 927(A)(5) and “… tests the legal sufficiency of a petition by examining whether, based upon the facts alleged in the pleading, the law affords the plaintiff a remedy.”  Montalvo v. Sondes, 637 So.2d 127, 131 (La. 1994).

[148] The dilatory exception of prematurity exists under La. C.C.P. 926(A)(1) and “…questions whether the cause of action has matured to the point where it is ripe for judicial determination.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993).

[149] Louisiana jurisprudence clearly dictates that courts shall not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to such controversies.   CITGO Petroleum Co. v. Louisiana Public Service Com’n, 898 So.2d 291 (La. 2005).

[150] Memorandum in Support of Conservation’s Exceptions to the Plaintiff’s Petition for Declaratory and Injunctive Relief, pg. 6

[151] Memorandum in Support of Conservation’s Exceptions to the Plaintiff’s Petition for Declaratory and Injunctive Relief, pgs. 9-12

[152] City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 640 So.2d 237 (La. 1994); La. Const. Art. VI, § 4.  See also, City of New Orleans v. State, 426 So.2d 1318 (La. 1983)

[153] St. Tammany Parish, La., A Home Rule Charter for a President-Council Government for St Tammany Parish (1998), available athttp://www.stpgov.org/files/Council/Home-Rule_Charter.PDF.

[154] See La. Cost. Art. VI, §§ 4 and 5(E).

[155] La. Const. Art. VI, § 5(E).

[156] La. Const. Art. VI, § 44(5).

[157] La. Const. Art. VI, § 9(B).

[158] Vanguard Environmental, LLC v. Terrebonne Parish Consolidated Government, No. 2012-1998, 2013 WL 4426508 (La. Ct. App. 1^st Cir. 2013).

[159] Energy Management Corp. v. City of Schreveport, 397 F.3d 297 (5^th Cir. 2005).  See Part III, C supra.

[160] La. R.S. 33:109.1 provides as follows:

Whenever a parish or municipal planning commission has adopted a master plan, state agencies and departments shall consider such adopted master plan before undertaking any activity or action which would affect the adopted elements of the master plan.

[161] La. R.S. 33:101

[162] City of Baton Rouge v. Hebert, 378 So.2d 144 (La. Ct. App. 1^st Cir. 1979).

[163] See Part III, C. supra.