Ohio is a notoriously difficult state for building renewable energy. Many counties ban wind and solar outright, but even in those that don’t, state regulators often rely on local opposition to deny permits for developers.

Fossil fuel companies, on the other hand, do not face these hurdles. This discrepancy is underscored by the fact that plans to build two fracking-waste wells in Ohio’s rural Washington County are poised to move ahead despite objections from residents, environmental groups, and nearby town governments. DeepRock Disposal Solutions aims to use these deep holes in the earth to push toxic liquid waste from fracking oil and gas into porous rock layers far underground.

Last week, a Franklin County Court of Appeals magistrate — a court officer who handles preliminary matters as well as detailed issues in complex cases — recommended the dismissal of a lawsuit filed by Buckeye Environmental Network in opposition to the wells. The group argues that the state illegally relied on outdated rules when permitting the project, which risks contaminating local groundwater supplies.

DeepRock applied for drilling permits in late 2021, about a month before the state adopted stricter waste-well regulations that are meant to better protect public safety and health. Although the state didn’t complete a technical review or issue DeepRock’s permits until 2025, it relied on the more lax standards in place when the company had first applied. Buckeye Environmental Network says that the current rules would have required a denial of the permits.

In recommending that the Franklin County Court of Appeals dismiss the lawsuit, Magistrate Thomas Scholl wrote that Buckeye Environmental Network had not adequately shown that the state ​“had a clear legal duty” to use the new rules. To reach that conclusion, he noted that DeepRock had a ​“vested and substantial” interest in the agency applying the old framework, adding that ​“permit applications require substantial investments of time, capital, and technical resources to complete.”

Renewable energy firms, by contrast, have historically not gotten similar deference from state regulators.

Opposition by local government boards and area residents has been enough for the Ohio Power Siting Board to deny permits for certain solar projects, even after developers have spent hundreds of thousands of dollars on studies, hearings, and other work to meet legal requirements. Last month, for example, the flip-flop of a single township trustee’s vote led to the denial of a permit for the 94-megawatt Crossroads Solar Grazing Center. (The Ohio Supreme Court is currently considering whether local government opposition was sufficient grounds for denying a permit in the case of Kingwood Solar.)

Parties in the fracking-waste lawsuit — which include state regulators, DeepRock, and Buckeye Environmental Network — have until April 30 to file objections to the magistrate’s recommendation. But if judges at the court agree with the magistrate — as they often do — and dismiss the case, it could clear the way for DeepRock to drill its wells in the coming months.

“We believe that the decision speaks for itself, so we have no additional comment,” said Karina Cheung, spokesperson at the Ohio Department of Natural Resources.

Ohio already has more than 200 Class II injection wells that together accept more than a billion gallons per year of super-salty fluids from fracking activities. This brine can contain heavy metals, radioactive chemicals, and ​“trade secret” compounds. Seventeen of those wells are in Washington County, along with many other wells for drilling for natural gas, Buckeye Environmental Network reports.

“Washington County has been forced to accept over 71 million barrels of oil and gas wastewater since 2010,” said Bev Reed, Appalachian community organizer for the network. ​“How much waste can one county take before someone looks at this and says ​‘enough is enough’?”

Others are pushing back, too. The city of Marietta, whose municipal water system and source water protection area is roughly two miles from DeepRock’s project sites, passed a resolution last year to oppose one of DeepRock’s permits. In March, officials for the city of Marietta and nearby townships also asked Republican Gov. Mike DeWine and Ohio lawmakers to impose a three-year moratorium on additional wells in Washington County. Although similar opposition from local governments has tanked renewables projects, these efforts have not yielded results.