A seemingly well-organized grass roots environmental campaign is successfully pushing local municipalities to ban hydraulic fracturing (fracking). Led by environmental organizations, like the Community Environmental Legal Defense Fund, most ordinance fracking bans are premised on the municipality’s home rule authority. Home rule refers to the authority a state legislature delegates to a town via a charter or a municipality's right to govern itself where no charter exists. Although the point of home rule is to prevent state government intervention in local affairs—or limit the scope with which the state may interfere—the extent of a municipality’s power is subject to limitations prescribed by state constitutions and statutes. Thus far, the effort has resulted in municipality-adopted fracking bans in Buffalo, New York; Pittsburgh, Pennsylvania; and, most recently, Morgantown and Westover, West Virginia.

In the case of Morgantown, the ban stonewalled Northeast Natural Energy, LLC’s fracking operations just outside city limits, despite Northeast having state permits in hand and voluntarily agreeing to substantial additional safeguards requested and approved by Morgantown. In late June, Northeast sued the municipality, seeking injunctive and declaratory relief. In its complaint [PDF], Northeast argues, among other things, that the ordinance is preempted by State law, violates the scope of the municipality’s charter, and violates Northeast’s constitutional due process rights. Northeast seeks tens of millions of dollars for the unlawful taking of its property without just compensation.

Morgantown enacted the ban despite Northeast’s concerted effort to put in place substantial safety measures over and above what was required by state law. After obtaining the requisite state permits, Northeast voluntarily agreed to additional precautions for spill containment, spill prevention, well integrity, waste disposal, and fracking fluid containment—the types of best management practices that industry is being urged to implement, and has begun developing [PDF]. For spill containment, Northeast agreed to use a closed-loop system during drilling operations to contain all drilling fluids and mud, create a berm providing a third level of containment, fuse a single liner for a continuous barrier, and encase with cement/grout the full lengths of the production casing. To prevent spills Northeast agreed, among other things, to use a second automatically activated blow-out preventer and test the casings with a hydrostatic pressure 10% greater than the anticipated pressure. Despite Morgantown officials’ explicit acknowledgment that the measures adequately protected the water supply, the Town passed an ordinance halting all fracking operations up to one mile outside of its boarders.

The case is notable in several respects. First, Northeast’s extra containment and prevention efforts highlight what most experts acknowledge is the major stress point in a frack operation—well casing design and construction. Second, the case is indicative of how inflamed rhetoric combined with the lack of an open, honest, fact-based debate has injected substantial fear into local communities. Indeed, several days ago Arthur Brisbane, the New York Times’ public editor responsible for ensuring the paper’s fair and transparent reporting, again took issue with The Times’ Ian Urbina's controversial reporting of the fracking. Mr. Brisbane noted that, in a recent article likening industry projections about the future of shale reserves to the housing and technology bubbles, “[t]he Times decided to go with the redacted documents and, in doing so, placed the serious shortcomings of anonymous sourcing on display.” Unfortunately, this kind of reporting makes it much more difficult to conduct a reasoned debate about legitimate public health and safety concerns. It also tends to arm municipalities, like Morgantown, with the needed ammunition to justify outright drilling bans—even in the face of extraordinary efforts by operators to ensure the drilling is done safely.

In the end, it will be left to the courts in these matters to determine how to balance: a local government’s right to protect public health and welfare; with a predominantly State-based regulatory scheme; and a company’s rights—among them the right not to be deprived of property interests without due process of law. While each decision will in some respects turn on unique state and municipal law (including home rule construct), the general trends and arguments are likely to be the same (i.e., state preemption, takings, scope of municipal authority).  For this reason, this blog will continue to monitor this issue as it plays out in Morgantown and other municipalities.