Morgantown Can’t Ban Fracking, Judge Says

A judge in Monongalia County, West Virginia has overturned an ordinance that sought to prohibit <"http://www.yourlawyer.com/topics/overview/hydraulic_fracturing_fracking">hydraulic fracturing, aka fracking, in or near the city limits of Morgantown. Morgantown City Council had adopted the fracking ban earlier this summer, after it was revealed that Northeast Natural Energy of Charleston had been permitted to drill two Marcellus Shale natural gas wells just upriver from the area’s drinking water intake on the Monongahela River.

Northeast Natural Energy had sought an injunction against Morgantown in June, but that was denied. It then filed suit against the city. On Friday, five days before a scheduled hearing on the ban, Monongalia County Circuit Judge Susan Tucker overturned the ordinance.

In its lawsuit, Northeast Natural Gas had claimed natural gas drilling is regulated exclusively by the state, and alleged that the ordinance illegally deprived private land owners of their property rights. According to a report from the Charleston Daily Mail, during a hearing in July, Judge Tucker directed the parties to prepare arguments to address her question: “Can a municipality adopt an ordinance that trumps DEP rules?” The order issued on Friday constituted her ruling on that question, finding that state code gives theWest Virginia Department of Environmental Protection (DEP) sole discretion regarding the exploration, development, production, storage and recovery of oil and gas.

“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.”

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

Morgantown City Manager Terrence Moore told the Charleston Daily Mail that he is reviewing and discussing the ruling with city attorney Steve Fanok, in order to develop a response to the ruling. He did not say if the city would appeal.

Representatives for the energy industry praised Tucker’s order.

“We all along believed the city of Morgantown and some other communities in the state don’t have the right to pre-empt the regulatory powers of the Department of Environmental Protection,” Corky DeMarco, executive director of the West Virginia Oil and Natural Gas Association, told the Associated Press.

DeMarco said the ruling gives West Virginia’s oil and gas producers the certainty they need to keep expanding operations in the state.

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