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.