Monongalia judge kills Morgantown fracking ban

By Jessica M. Karmasek | Aug 16, 2011

MORGANTOWN -- A Monongalia Circuit Court judge last week struck down a ban on fracking by the city of Morgantown, saying the state Department of Environmental Protection has "exclusive control of this area of law."

MORGANTOWN -- A Monongalia Circuit Court judge last week struck down a ban on fracking by the city of Morgantown, saying the state Department of Environmental Protection has "exclusive control of this area of law."

The fracking, or hydraulic fracturing, process involves the injection of fluids containing a mixture of water, chemicals and other compounds into a well that has been drilled into the Marcellus Shale.

The shale is prevalent throughout much of the Appalachian basin, including most of West Virginia and Pennsylvania.

These fluids, at high pressure, can fracture rock formations in the shale and release natural gas, which can then be extracted.

At issue is the adoption by Morgantown City Council of a ban on fracking within the city of Morgantown and areas one mile outside of the Morgantown corporate limits.

The plaintiffs, Northeast Natural Energy LLC and Ern-out Properties LLC, claim that the city violated their constitutional rights by adopting a regulation in derogation of state laws that regulate natural gas extraction.

The two companies contend that the regulations promulgated by the WVDEP preempt the city's ordinance and thus preclude its enforcement.

The city contends that it has the authority to enact and enforce the ordinance pursuant to the rights given to the city by the Home Rule provisions in state code, which characterize the hydraulic fracturing process as a nuisance.

According to the court, the doctrine of preemption is applicable law when the State has assumed control of a particular subject of regulation, and a local government has enacted an ordinance in the same field.

When a state law fully occupies a particular area of legislation, indicated by the State's comprehensive regulatory scheme, no local ordinances will be permitted to contravene it, Judge Susan B. Tucker wrote in her Aug. 12 order.

Tucker said the legislative purpose of the WVDEP is clearly set forth in state code.

"The legislation sets forth a comprehensive regulatory scheme with no exception carved out for a municipal corporation to act in conjunction with the WVDEP pursuant to the Home Rule provision," she wrote.

"In fact, as set forth in the legislative statement of policy and purpose governmental entities are required to supplement and complement the efforts of the State by coordinating their programs with those of the State."

Municipal corporations, such as the city of Morgantown, are creatures of the State, the judge explained.

A municipal corporation only has the powers "granted to it by the Legislature, and any such power it possesses must be expressly granted or necessarily or fairly implied or essential and indispensable," Tucker wrote.

She added that the state Supreme Court also has stated that "where both the State and a municipality enact legislation on the same subject matter, it is generally held that if there are inconsistencies, the municipal ordinance must yield."

Tucker called the city's argument "unpersuasive."

"The city characterizes fracking as a nuisance which can be regulated under the Home Rule provision. However, there is no exception carved out by the WVDEP, whose all inclusive purpose is to regulate the mining of gas and oil," she wrote in the 10-page order.

"The provisions clearly indicate that this area of law is exclusively in the hands of the WVDEP. No exception is carved out for any locality or municipality. In fact, throughout the regulation it is explicit that all authority lies solely within the hands of the Director."

Tucker said the court is "mindful" that the environmental issues regarding the fracking process "are foremost in the public's concern." However, those issues are being addressed by the state government, she said.

She added, "The legal issue in this case is very narrow, and does not permit consideration of any environmental concerns."

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