Gas Company Hires Lawyer to Sue Morgantown Over Ban
May seek injunction to stop the law from taking effect
Morgantown Dominion Post
22 June 2011
By David Beard
The wheels are already in motion to sue Morgantown over its horizontal
gas drilling and fracking ban, a Jackson Kelly attorney said Tuesday.
Al Sebok said Enrout Properties LLC, which owns the surface and mineral
rights to the Morgantown Industrial Park Marcellus gas pad, has
retained him to represent Enrout in litigation against the city. Sebok
was one of the scheduled speakers at Jackson Kelly’s seminar,
“Marcellus Shale in WV: Emerging Issues,” held at the Waterfront Place
Hotel.
Morgantown based its ban on state code 8-12-19, which allows cities to
extend their jurisdiction one mile beyond their boundaries when
required to reasonably exercise their powers and authority.
Sebok listed several reasons why the city may be wrong. One, 8-12-19
was written in 1969. When the Legislature updated the zoning law in
2004, it didn’t include the same extraterritorial provision; while
Morgantown is changing its business and taxation code, the ban is
really more of a zoning issue.
Two, code 8-12-2, regarding home rule powers, forbids city laws that
conflict with the state constitution or other general law. The ban does
conflict.
Three, cities have the power to legislate against public nuisances, but
the law clearly defines public nuisance, and the city can’t
“arbitrarily and capriciously” declare a legally permitted activity a
public nuisance.
Sebok said Northeast Natural Energy, the natural gas firm at the site,
worked closely with the Morgantown Utility Board, a city agency, even
before the permit was approved, and agreed to extra provisions —
containment, berms, casings and testing — after the permit was issued.
“This is what I view as a win-win situation for everyone. This is how
the permitting [process] should work,” he said.
He called the city’s action a regulatory taking of property without
just compensation.
He later told The Dominion Post that he didn’t know how soon Enrout
would file suit — they’re evaluating options — but it likely will be
quickly. He also said the company may seek an injunction or restraining
order to suspend the ordinance until litigation is completed.
Northeast President Michael John said that litigation is under
consideration, and the company has been working with attorneys to map
out strategies.
Bottom line, though, he said: “I do not want to sue the city of
Morgantown.” Northeast is in the business of drilling, not taking
cities to court, he said.
Morgantown City Manager Terrence Moore said the city has anticipated
legal action and is acting with due diligence to prepare for and
support City Council’s action, and will respond accordingly. He
believes state code supports the city’s position.
Rob Alsop, chief of staff for acting Gov. Earl Ray Tomblin, also spoke
at the Jackson Kelly seminar. He equated the city’s ban to what the
Environmental Protection Agency did to Arch Coal’s Spruce Mine in Logan
County: Retroactively revoked a water permit, effectively halting $250
million worth of planned operations.
Alsop referred to Northeast’s $7 million-plus investment at the
Morgantown site. “Now, after the fact, there’s the potential they could
be told to stop.”
That could have a chilling impact on business across the state, he
said, when Tomblin wants to promote the industry and its ancillary
businesses.
“Marcellus shale is a great development for West Virginia,” Alsop said.
“We are doing all we can to make it a phenomenal development for West
Virginia.”
Tomblin appointed a Marcellus and Manufacturing Task Force to explore
the promise of ethane, a natural gas by-product that could spur all
sorts of plasticsrelated manufacturing to replace the lost chemical
industry in the Kanawha Valley and the lost steel works in the Northern
Panhandle.
“We want this type of investment here,” he said.