“This is a body that was mostly appointed by the legislature that has seen its role as promoting fracking for oil and gas rather than regulating it,” said Hope Taylor, executive director of the nonprofit. “This is supposed to be a judicial body [ruling on disputes] rather than a legislative, so they [the MEC] should not have the authority to rule.”
Senate Bill 786, which also lifted the moratorium on fracking in North Carolina last year, stipulates that local governments can’t regulate oil and gas development to a greater extent than the state rules. The law then gave the MEC, which it also charged with writing the rules, the job of adjudicating disputes about whether local laws violate that provision.
That violates the separation of powers, Taylor said.
The Duke Environmental Law and Policy Clinic is representing Clean Water as well as the three other plaintiffs on the case — Martha Girolami, Chatham County resident; Anna Baucom, chairman of the Anson County Board of Commissioners; and Darryl Moss, mayor of the City of Creedmor. All three individuals are members of Clean Water’s board of advisors and live in areas of shale formations that could contain gas. They are filing suit in Wake County Superior Court against the Mining and Energy Commission, the N.C. Department of Environment of Natural Resources and the State of North Carolina. The outcome of the suit would also apply to the MEC after Aug. 1, when it reforms as the Oil and Gas Commission.
It will likely be several months before the case gets a hearing in court, but the outcome could have significant implications for Jackson County, which is currently in the process of writing an industrial development ordinance to use zoning laws to limit where fracking could take place. The county has struck an agreement with the Natural Resources Defense Council to get advice on crafting an ordinance capable of withstanding a challenge, but nevertheless it’s intimidating for localities to write such ordinances knowing that they’ll have to defend them to a body that, Taylor said, has shown a pro-fracking slant.
“They [the legislature] assigned the responsibility to hear these petitions from industry to the Mining and Energy Commission,” Taylor said. “That’s pretty intimidating stuff when you know the Mining and Energy Commission made these rules that are inadequate and has been so pro-fracking.”
For his part, MEC Chairman Vikram Rao said he’s not quite sure why the suit is even filed against his commission.
“There’s nothing we can do,” he said. “The legislature lays down statutes and we follow them.”
Clean Water’s lawsuit isn’t the only one out there challenging the MEC’s authority. In January, the Haw River Assembly — a water quality advocacy group from Chatham County — filed a lawsuit alleging that the MEC is an illegal body because the majority of its members are legislative, not executive, appointees. That violates the separation of powers, the suit says, because the MEC is an executive body.
A written ruling on Haw River’s motion for a preliminary injunction — basically, a stop order until a final verdict is reached — is expected to come this week, but fracking opponents are hopeful about the outcome due to a March ruling on a different case, brought by Gov. Pat McCrory and claiming that a trio of commissions the Legislature set up were illegal because they were made of legislative appointees.
“That was actually broadly interpreted by a court ruling saying the legitimacy of that commission was in question, and it added the MEC to the list of commissions that is questionable,” Taylor said.
Rao, however, said the commission plans to keep on keeping on for as long as it’s allowed to.
“We feel what we are doing is in the public interest,” he said, “and we will continue to do it until someone stops us.”
The Mining and Energy Commission is expected to discuss two key topics regarding rules for oil and gas development at its May 22 meeting in Raleigh.
• Air pollution. A committee under the commission has been studying the issue and will report its findings. The commission will make a preliminary decision on what, if anything, it should do to regulate air pollution from oil and gas development and whether the MEC is the appropriate body to make those rules.
• Open pits. Public comment decrying the MEC’s decision to allow open pits for temporary storage of used frackwater prompted the commission to research whether to ban such pits. Staff will report their findings at the meeting.