For some time now, MDN has covered the hydraulic fracturing ban passed by the city of Morgantown, West Virginia (see list of articles here). In a surprise move last Friday, the Monongalia County (WV) Circuit Court Judge Susan Tucker overturned Morgantown’s fracking ban, clearing the way for Northeast Energy to continue drilling and fracking operations about a mile outside of Morgantown city lines. Judge Tucker’s “summary judgment” is embedded below.
A hearing was set to begin this week in Monongalia County Circuit Court, but Friday Judge Susan Tucker issued a decision ahead of the hearing, siding with Northeast.
Judge Tucker’s ruling striking down the City of Morgantown’s fracking ban was concise and decisive: a West Virginia municipality simply does not have the authority to pre-empt a state agency that is carrying out its responsibility.
In the decision…Tucker emphasized the clarity of state law defining the purpose of the WVDEP: “the state has the primary responsibility for protecting the environment; other government entities, public and private organizations and our citizens have the primary responsibility of supporting the state in its role as protector of the environment.”
Tucker found no exception carved out for municipalities, and when there are inconsistencies in legislation enacted by cities and the state, the state has the upper hand.
What’s even more interesting about Judge Tucker’s decision is that it’s a “summary judgment.” That means there are no facts to be debated or issues to clarify. It’s a matter of law that the WVDEP has jurisdiction on the drilling issue.
Meanwhile, the next step is up to Morgantown City Council. Will it accept the decision and try to work with Northeast to make sure the community concerns are met, or will it appeal the decision to a higher court?
Tucker’s ruling will also resonate across the state. Several communities have passed drilling bans, although a few of them have since reversed themselves. It would appear that any existing bans would likely fall given Tucker’s decision.
Will Morgantown City Council members continue their opposition and appeal the decision? Stay tuned…
*West Virginia MetroNews Network (Aug 14, 2011) – Hoppy’s Commentary