In a six to one vote, the Morgantown, West Virginia, City Council passed an ordinance banning hydraulic fracturing within a one mile radius of its city limits. See Pam Kasey, Morgantown Bans Fracking, The State Journal, at 1 (June 24–30, 2011). The ban, which was passed during the June 21 regular City Council meeting, prohibits any operations using horizontal drilling and fracking to operate within the city limits or within one mile of the city limits. The decision has raised both support and criticism from the community, industry, and the City Council itself. Councilman Charles Bryer, who offered the lone vote in opposition to the ordinance, stated that “I think we’re basically going to be regretting this down the road. We have opportunity here. We’re sitting on a treasure . . . [a]nd I think we’re on a slippery slope from a legal perspective.” Id. at 4.
Councilman Bryer is not alone in worrying about the legality of the ban; the ordinance’s passage has sparked a legal debate and a law suit. Northeast Natural Energy, a company operating two Marcellus gas wells in the Morgantown area, filed suit in Monongalia County Circuit Court on June 24. The complaint requests a temporary injunction prohibiting the ordinance from taking effect. See http://www.thedaonline.com/news/fracking-ban-questioned-in-county-court-1.2418458. Also included in the lawsuit is Enrout Properties, LLC, a company that owns the mineral rights to the land Northeast is drilling on. Among other things, the complaint alleges that the ordinance illegally bans activity outside of the city limits. Monongalia County Circuit Judge Russell Clawges denied the injunction request.
The West Virginia Constitution states that any municipal ordinance or charter “shall be invalid and void if inconsistent or in conflict with this Constitution or the general laws of the State then in effect, or thereafter, from time to time enacted.” W. Va. Const. art. 6, §39(a). Therefore, if it is found that the ordinance conflicts with sections of the West Virginia Code, it could be deemed unconstitutional and, therefore, unenforceable. In addition to concerns of constitutionality, the ordinance raises other concerns, as it conflicts with mineral owners’ rights. In passing the ordinance, the City has effectively prohibited property owners from leasing the gas beneath their properties to gas companies, thereby nullifying a valuable property right.
As demand continues to rise for natural gas and the energy that it helps produce, issues like this one will continue to flourish in states who can supply those minerals. Most of these issues are those of first impression and are without easy answers.
This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.