On Friday, August 12, Monongalia County Circuit Judge Susan Tucker ruled that the City of Morgantown’s ban on hydraulic fracturing was preempted by state legislation. Judge Tucker's ruling invalidated the June 2011 Morgantown City Council ordinance prohibiting hydraulic fracturing within the city limits and within one mile of the city limits. See Order.
The City of Morgantown argued, in part, that fracking constituted a nuisance subject to local regulation. Judge Susan Tucker ruled that the City of Morgantown lacks the authority to impose a complete ban on fracking or to regulate oil and gas development and production because the practice is regulated solely by the West Virginia Department of Environmental Protection (WVDEP). According to Judge Tucker, the director of the WVDEP has the sole authority to issue or deny drilling permit applications. Judge Tucker specifically set forth that environmental issues are being addressed by West Virginia's state government, as indicated by Governor Tomblin's July 5, 2011 Executive Order to the Director of the WVDEP.
Judge Tucker's decision is the first to deal with the preemption doctrine in the wake of several West Virginia, Pennsylvania and Ohio localities passing similar ordinances which seek to prohibit hydraulic fracturing. It is unclear if these ordinances demonstrate a trend towards local attempts to regulate hydraulic fracturing or whether or not Judge Tucker's ruling will set the preemption standard. The increasingly localized attempts to prohibit hydraulic fracturing and how the courts and legislative bodies deal with them will continue to be monitored by McGuireWoods and McGuireWoods Consulting.