Judge Nixes City’s Ban on Fracking

Says state law trumps municipal ordinance

Morgantown Dominion Post
13 August 2011
By David Beard

Monongalia County Circuit Judge Susan Tucker has overturned Morgantown’s fracking ban.

Tucker issued her order Friday afternoon, five days before a scheduled hearing on the ban.

Tucker ruled in favor of plaintiffs Northeast Natural Energy, which is drilling two horizontal Marcellus gas wells in the Morgantown Industrial Park, and Enrout Properties LLC, which owns the well pad surface and coowns the mineral rights.

“We appreciate Judge Tucker’s thoughtful and detailed analysis of this issue,” Northeast President Michael John said. “Obviously, we are pleased with the ruling and we intend to continue to work in good faith with the Morgantown Utility Board, the city of Morgantown and other stakeholders in Monongalia County. We are sensitive to the community’s concerns and we are committed to operating in a safe and environmentally friendly manner.”

Morgantown City Manager Terrence Moore said he is reviewing and discussing the ruling with city attorney Steve Fanok, in order to develop a response to the ruling.

Asked if the city is considering an appeal, Moore declined to elaborate.

During a July scheduling hearing, Tucker had said from the bench that however she ruled, she expected her decision to be appealed to the state Supreme Court.

At the July scheduling hearing, Tucker also ordered the parties to prepare arguments to address her question: “Can a municipality adopt an ordinance that trumps DEP rules?”

Tucker ruled on that question in her Friday order. State code gives the Department of Environmental Protection sole discretion regarding the exploration, development, production, storage and recovery of oil and gas, she wrote. There is no exception to that carved out in the municipal home rule statute.

“Governmental entities are required to supplement and complement the efforts of the state by coordinating their programs with those of the state,” she wrote. Where there’s a conflict, the state Supreme Court has ruled, “the municipal ordinance must yield.”

State regulations, she wrote, “do not provide any exception or latitude to permit the city of Morgantown to impose a complete ban on fracking or to regulate oil and gas development and production.”

The legal issues in the case, she wrote, did not grant her room to consider environmental issues, which acting Gov. Earl Ray Tomblin addressed in an executive order to the DEP.

“The ordinance passed by the city of Morgantown,” she concluded, “is pre-empted by state legislation and is invalid.”

Sources associated with the case said Tucker’s Friday ruling precludes a scheduled Wednesday hearing concerning plaintiffs’ request for a preliminary injunction to prevent enforcement of the fracking ban.