Monongalia County Judge Declares Morgantown Fracking Ban Invalid

On August 12th, Circuit Judge Susan Tucker of Monongalia County overturned the fracking ban of the City of Morgantown, which extended one mile beyond the City limits, according to the Morgantown Dominion-Post.  “The ordinance passed by the City of Morgantown,” she concluded, “is pre-empted by state legislation and is invalid.”

Northeast Natural Energy has already started two Marcellus gas wells in the Morgantown Industrial Park on behalf of Enrout Properties LLC, which owns the well pad surface and co-owns the mineral rights. 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.
 
At the July scheduling hearing, Tucker ordered the parties to prepare arguments to address her question: “Can a municipality adopt an ordinance that trumps WV-DEP rules?” Tucker now has ruled on that question; State code gives the Department of Environmental Protection (WV-DEP) 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 claims, do not give her authority to consider environmental issues, which acting Gov. Earl Ray Tomblin addressed in the recent executive order to the WV-DEP.  This executive order is to be put into effect this coming week, according to reliable sources.

Tagged as: ban, Circuit Court, executive order, fracking, governor, marcellus shale, Morgantown, wv