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.

A suit filed on Thursday and heard in Monongalia Circuit Court on Friday states that the new Morgantown City ordinance, which bans horizontal drilling with fracking, infringes on Enrout’s rights as a land and mineral owner and amounts to an unconstitutional taking and by failing to read the ordinance in its entirety, the city failed to follow its own charter, thereby invalidating the ordinance. 

The suit asks the court to void the ordinance and grant any other appropriate relief. It also requests a temporary restraining order and preliminary injunction, citing irreparable harm in halting operations already under way, as reported in the Morgantown Dominion Post on June 25^th.

Morgantown may have a small legal victory at this point. Judge Russell Clawges denied the motion for a preliminary injunction and temporary restraining order to stop the City from enforcing its law. City Attorney Steven Fanok said that won’t halt Northeast Natural Energy’s drilling at the Morgantown Industrial Park Marcellus gas well pad, but will prevent the company from fracking when drilling is complete. Fanok said Clawges merely stated that at this time, a temporary restraining order would be inappropriate.

At the hearing, Fanok said, it was explained to the court that the gas well operation wouldn’t be in violation until fracking would begin. Northeast can continue drilling until then.

Northeast President Michael John issued this statement Friday: “While we had hoped to avoid legal action, it has become apparent that the judicial system is the only recourse to protect our rights and investment in our wells in the Morgantown Industrial Park. … We are also encouraged that the court recognized that the City of Morgantown has changed the rules after we have invested more than $7 million in this project and we will seek full compensation for Morgantown’s attempt to unlawfully take our property rights.” 

(Northeast can still drill a vertical well, frack it, and produce the gas if a permit is obtained from the City, subject to a legal interpretation and ruling on the new ordinance.)