Drilling update: W.Va. Supreme Court denies surface owners the right to appeal oil and gas permits

November 26, 2012 by Ken Ward Jr.

Back in September, we wrote about a case before the West Virginia Supreme Court that held great importance for surface landowners who don’t also hold title to oil and gas reserves under their property:

The state Supreme Court will hear arguments later this week in a significant case that could decide if surface landowners are able to appeal oil and gas drilling permits on their land.

Citizen groups, industry lobbyists and the state Department of Environmental Protection all seem to agree that West Virginia’s oil and gas statute doesn’t specifically allow such appeals.

But though justices appear to have incorrectly cited that statute in a ruling 10 years ago, citizen groups argue now that the court reached the correct result. They say surface landowners should have a due process right to have their challenges to drilling permits heard.

Last Wednesday, on the last day of its term and the day before Thanksgiving, the justices issued their ruling, in which they held:

The right of judicial review with regard to the issuance or refusal of a well work permit as provided by W. Va. Code § 22-6-41 does not extend to owners of the surface rights of the property upon which the proposed well is to be drilled. To the extent that State ex rel. Lovejoy v. Callaghan indicates otherwise, it is overruled.

The right of judicial review with regard to the issuance or refusal of a well work permit as provided by W. Va. Code § 22-6-40 does not extend to owners of the surface rights of the property upon which the proposed well is to be drilled.

Writing for the court, Justice Margaret Workman added this:

Nonetheless, given the fact that the statutes granting the right of judicial review discussed herein, W. Va. Code § 22-6-40 and -41,were enacted prior to the extensive development  of Marcellus shale in this State, this Court urges the Legislature to re-examine this issue and consider whether surface owners should be afforded an administrative appeal under these circumstances.

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