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Judge Strikes Down Morgantown Fracking Ban

A judge in West Virginia has struck down the city of Morgantown's ordinance banning hydraulic fracturing (fracking), ruling that the state Department of Environmental Protection (DEP) has exclusive dominion over the regulation of natural gas drilling.

Meanwhile, city officials projected a cautious-yet-conciliatory tone in the wake of their legal defeat, with City Manager Terrence Moore saying the municipality was looking to collaborate with Northeast Natural Energy (NNE) and Mayor Jim Manilla saying the city council will meet Tuesday night to discuss its options, which could include an appeal to the state Supreme Court.

"The state's interest in oil and gas development and production throughout the state, as set forth in [the state code], provides for the exclusive control of this area of law to be within the hands of the DEP," Monongalia County Circuit Court Judge Susan Tucker said in her ruling late Friday. "These regulations 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."

Morgantown enacted an ordinance banning fracking within the city and an adjacent one-mile buffer zone on June 21 (see Shale Daily, June 23). The ordinance specifically targeted two Marcellus Shale natural gas wells being drilled by NNE in the Morgantown Industrial Park, which lies within the buffer zone. In response, NNE filed suit against the city on June 23 (see Shale Daily, June 28).

In a statement Monday, NNE president Mike John said the Charleston, WV-based company "appreciated Judge Tucker's thoughtful and detailed analysis of the issue. Obviously we are pleased with the ruling and we intend to continue to work in good faith with the Morgantown Utility Board, the City of Morgantown and other stakeholders in Monongalia County. We are sensitive to the community's concerns and we are committed to operating in a safe and environmentally friendly manner."

Moore confirmed that NNE had expressed an interest in working with the city, despite the legal battle.

"The City of Morgantown, like any other city, would have to acknowledge the court's position," Moore told NGI's Shale Daily on Monday. "By doing so, we hope to be able to work with everybody amicably to include other protective measures that may be worthy for consideration. It's still a work in progress, but [we are looking for] some assurances from NNE and the state that things will be well in hand, and to have additional measures that are above and beyond permitted requirements. We will discuss some strategies in that regard based on what the existing legal ability is."

But when pressed if that included an appeal to the state Supreme Court, Moore added, "When I talk about working amicably with all involved, it means anything that is not adversarial. I think there is an opportunity to be amenable with one another. This does avoid the need for lengthy litigation. We're out of that ballpark right now and we can devote time, energy and resources to more productive and amenable efforts."

NNE accepted additional measures beyond permit requirements in May when it agreed to adopt closed-loop drilling systems at the two wells outside Morgantown (see Shale Daily, May 25). On Monday NNE spokesman Brett Loflin told NGI's Shale Daily that the company had completed drilling both wells and hoped to begin fracking them soon.

"The rig has moved off the [second] hole and hopefully we will be fracking in September," Loflin said Monday. "We'll frack both wells at the same time. Right now getting the service company is the tricky part. We still have not shored up who we are going to even use to frack yet, so I can't make any guarantee that we're going to be fracking in September."

Manilla, who took office on July 5 and was not on the city council when the ordinance was enacted, told NGI's Shale Daily that the council would meet in executive session Tuesday with Moore and City Attorney Steve Fanok.

"They are consulting with each other right now and they're going to let us know what our options are concerning this," Manilla said Monday. "Council will make a decision on how they want to proceed after that. We may not make a decision Tuesday night, but we're going to know what our options are."

Asked if he thought the city would win an appeal, Manilla said, "It doesn't look that way. I didn't think the one-mile taking would hold up. The circuit judge has already ruled against us. It's hard for me to say how an appeal would go, but we need to be real cautious.

"I would like to know, with an appeal, what we're really going to be getting into. This is hypothetical, but if [the Supreme Court] overturns the appeal, we're going to be right back in court and someone's going to have to make a decision on taking one mile outside the city limits. That's a different issue altogether. We're kind of in a quagmire here."

In her ruling, Tucker also referenced Gov. Earl Ray Tomblin's executive order from July directing the DEP to begin enforcing several new safeguards on shale drilling, and to identify areas of regulatory concern (see Shale Daily, July 14).

"This court is mindful that the environmental issues regarding the fracking process are foremost in the public's concern," Tucker said in her ruling. "However, it is also apparent to this court that the environmental issues are being addressed by our state government, as indicated by Gov. Tomblin's [executive order] to the director of the DEP, requesting that the DEP take the necessary steps to protect our safety and our environment."

Several municipalities across the Marcellus Shale region have been grappling with the issue of whether or not to implement local fracking bans. Last week the city of Wellsburg, WV, repealed an ordinance banning fracking, and the mayor of Pittsburgh said he would not sign a measure that would ask voters to approve a ban in a referendum (see Shale Daily, Aug. 11; Aug. 10).

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