Last minute bill challenges moratorium

By Nicholas Elmes -

Less than two days after local fracking opponents celebrated the passage of a local three-year fracking moratorium, a last minute bill passed by the state legislature seems to have changed the state law to invalidate such local attempts to limit fracking.

Senate Bill 119, which was ratified on Sept. 30 and signed by Gov. Pat McCrory on Oct. 1, modifies the state regulations on fracking expanding the prohibition of local regulations from ordinances prohibiting to fracking to “all provisions of local ordinances, including those regulating land use, adopted by counties, municipalities, or other local authorities that regulate or have the effect of regulating oil and gas exploration, development, and production activities within the jurisdiction of a local government.”

The new law makes such locally passed regulations “invalidated and unenforceable.”

Representatives of No Fracking in Stokes County, the organization which began the battle for a moratorium on fracking in Stokes County, were quick to condemn the state bill on Monday.

“This is nothing but an after-midnight attempt by the legislature to intimidate local governments,” said No Fracking in Stokes spokesman Mary Kerley. “Our lawyers are still looking into SB119, but we do not believe this legislation can pre-empt local ordinances. Their motive is to bully local governments, nothing more.”

The changes in state law also set up a process by which local ordinances can be challenged, noting that “the operator of the proposed activities may petition the Oil and Gas Commission to review the matter. After receipt of a petition, the Commission shall hold a hearing… and shall determine whether or to what extent to preempt the local ordinance to allow for the regulation of oil and gas exploration, development, and production activities.”

County Manager Rick Morris, after discussing the matter with the county attorney, said he felt the change in state law would not immediately impact the county’s moratorium.

“All it will do is automatically trigger a hearing,” he said. “The hearing would require the driller to address four areas that are listed in the law.”

According to the law, ” The Commission shall determine whether or to what extent to preempt local ordinances so as to allow for the establishment and operation of the facility no later than 60 days after conclusion of the hearing. The Commission shall preempt a local ordinance only if the Commission makes all of the following findings: (1) That there is a local ordinance that would regulate oil and gas exploration, development, and production activities, or use of horizontal drilling or hydraulic fracturing for that purpose, (2) That all legally required State and federal permits or approvals have been issued by the appropriate State and federal agencies or that all State and federal permit requirements have been satisfied and that the permits or approvals have been denied or withheld only because of the local ordinance; (3) That local citizens and elected officials have had adequate opportunity to participate in the permitting process.; and 4) That the oil and gas exploration, development, and production activities, and use of horizontal drilling or hydraulic fracturing for that purpose, will not pose an unreasonable health or environmental risk to the surrounding locality and that the operator has taken or consented to take reasonable measures to avoid or manage foreseeable risks and to comply to the maximum feasible extent with applicable local ordinances.”

If the Oil and Gas Mining and Energy Commission does not find all four elements to be true then it would not be allowed to preempt the challenged local ordinance. Morris noted that the county could appeal the decision by Oil and Gas Commission.

“I think our moratorium will automatically ensure that we are engaged in the process,” he added.

Therese Vick, with the Blue Ridge Environmental Defense League, agreed.

“Senate Bill 119 does not mean local government cannot place moratoriums on fracking, and the previously enacted moratoriums are not ‘moot,’” she said. “They are not automatically preempted, and the Oil and Gas Commission does not have the authority to challenge an ordinance, zoning, or a moratorium on their own. There is no penalty on local government for imposing a moratorium- it stands until challenged, and continues to stand until pre-empted by the Oil and Gas Commission.

“The preemption process is deliberative, findings of fact must be made, and includes provisions for a public hearing and public process,” she added. “Even then court is a remedy. The US Supreme Court has held that moratoriums are legal when time limited. A further fact impacting the potential for preemption of ordinances or moratorium is that the Oil and Gas Commission cannot be petitioned because there is an injunction against even applying for fracking permits right now. Additionally, the appointment of many state boards and commissions are subject to a legal challenge brought by Governor McCrory.”

Commissioner Leon Inman said Monday that his initial interpretation of the the law was that it left local governments with no recourse when it came to regulating fracking.

“It kind of blew me away to tell you the truth,” he said. “If I am interpreting it correctly, it completely strips counties and municipalities of any control over anything to do with hydraulic fracturing. It looks like they want to take any and all authority away from counties. I’m not real happy about it, I can tell you that.”

Kerley said opponents of fracking in Stokes County were disappointed that Rep. Bryan Holloway and state Sen. Shirley Randleman voted in favor of SB119.

“Representative Holloway has previously stood with the people of Stokes County against fracking. We hope that his vote on SB119 was a misunderstanding,” said Kerley. “As for state Senator Randleman, she has always favored oil and gas interests against the clear wishes of her constituents.”

Holloway said Monday that he did not know the provision was part of the bill when he voted for it.

“That bill came to the floor at four in the morning,” he explained. “The bill was put on the floor and we had less than two minutes to read a 40 page bill. We were told it was purely technical corrections intended to fix grammar and punctuation in the budget.

“If I had known it was in there, I would not have supported it,” he added. “The first question we asked was if it was purely technical and they said yes. I think this is a horrible way of doing government.”

Holloway added that he would support any efforts to change the wording of the regulations to allow more local control.

“I am willing to try to do something,” he said. “I have voted against fracking every single time.”

Kerley also thanked the all-Republican Stokes County Board of Commissioners for its unanimous approval last week of a three-year moratorium on fracking in Stokes County.

“Our county commissioners listened to the people of both parties and did the right thing,” Kerley said. “But this sneaky act by the legislature is not just an insult to the people of North Carolina, it also shows yet again that this legislature has no respect for local government. It couldn’t be any clearer that big money and out-of-state interests now own Raleigh, lock, stock and barrel.”

Nicholas Elmes may be reached at 336-591-8191 or on Twitter @NicholasElmes.

By Nicholas Elmes

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