Sides Drill for Court

Injunction sought on city fracking ban

Morgantown Dominion Post
11 August 2011
By David Beard

The Parties are preparing for next week’s Monongalia County Circuit Court hearing on Morgantown’s fracking ban, a plaintiff ’s spokesman said.

Both sides have submitted arguments to address Circuit Judge Susan Tucker’s question: “Can a municipality adopt an ordinance that trumps [Department of Environmental Protection] rules?”

The hearing, tentatively scheduled to run Aug. 17-19, concerns plaintiffs’ request for a preliminary injunction to prevent enforcement of the fracking ban pending the court’s ruling on a permanent injunction.

Attorneys are in the discovery process — gathering information through written questions, documents and depositions — the spokesman said.

Northeast Natural Energy and the property owner, Enrout Properties LLC, are suing Morgantown over its ban on fracking within a mile of city limits. That one-mile circle takes in Northeast’s two state-permitted wells in the Morgantown Industrial Park.

Both wells were permitted before the city enacted its ban. The permits were subsequently modified, also before the ban, to include additional protections the Morgantown Utility Board (MUB) requested.

In the suit, plaintiffs ask the court, among other things, to bar the city from enforcing its ban; to declare the city law preempted by state law; and to declare it an unconstitutional violation of due process in denying them their property rights.

Both sides filed papers on the pre-emption question earlier this month.

The plaintiffs contend in a motion for summary judgment that the Legislature has given the Department of Environmental Protection full authority to regulate all oil and gas environmental protection programs, including exploration, development, production, storage and recovery.

Because of that authority, plaintiffs said, state code and DEP regulations pre-empt the city law, which bans horizontal drilling with fracking near the city.

In a separate affidavit, Northeast’s Michael John said the company spends $50,000 to $85,000 a day on the operation.

Based on an agreement with MUB, Northeast said it plans to start fracking its two wells in September.

The city contends in its papers that state home rule code allows municipalities to make laws to protect public health and safety, eliminate hazards and abate public nuisances.

“The state regulates oil and gas drilling, but that fact does not preclude supplemental regulation at the local level,” the city said. While the state has “primary” responsibility for environmental protection, “it doesn’t have exclusive responsibility.”

Denying the city’s ability to implement its ban would mean local governments may not deal with any environmental subjects mentioned in code, the city said. “That would be a crippling blow to local communities intent on protecting their quality of life and maintaining environmental and health standards.”

The city also makes these points to defend its ban:

While plaintiffs say the ban is a zoning and land-use rule and therefore doesn’t fall under the home rule provisions, the city counters, “The motion at issue in this case is not a zoning law; it is a prohibition of noxious use to protect the health and safety of the community.”

SB 424 — the failed bill the joint Marcellus committee is using as its framework for new regulation — contains a clause pre-empting any local laws.

That makes it clear that current law is not pre-emptive.