Judge temporarily orders halt of North Carolina fracking units approval

North Carolina fracking lawsuit hinges on the question of the legality of several boards

A judge has halted the approval of fracking operations in North Carolina until a higher court weighs in on the legality of the appointment of several boards that manage state resources and the environment.

Wake County Superior Court Judge Donald W. Stephens’ decision earlier this month prevents the Mining and Energy Commission from approving drilling units for hydraulic fracturing until the state Supreme Court decides a separate case regarding how the state panels are formed. No drilling units had been approved before the judge issued his order.

Stephens issued a preliminary injunction that stops the commission from accepting or processing applications for drilling units for hydraulic fracturing, or fracking. The process involves injecting water, sand and chemicals to break apart underground rocks so oiland gas can escape.

Stephens also delayed proceedings in the lawsuit filed against the state’s Mining and Energy Commission pending the other case’s outcome.

The state’s highest court will hear arguments in late June on the separate lawsuit by Gov. Pat McCrory and two of his predecessors that challenged how several other state commissions were appointed. A panel of judges sided with McCrory earlier this year in striking down the way lawmakers appointed those boards, and the decision was appealed to the high court.

While the Mining and Energy Commission wasn’t challenged in McCrory’s lawsuit, Stephens wrote that both cases hinge on the same legal issue.

“Based on the decision of the three-judge panel in McCrory v. Berger, Plaintiffs have demonstrated that they are likely to succeed on the merits of their claim that legislative appointment of a majority of the members of the MEC is an unconstitutional violation of the separation of powers …,” the judge wrote in the order, signed May 6.

The fracking lawsuit, filed in January on behalf of plaintiffs including the Haw River Assembly, argues that the Legislature usurped the authority of the executive branch by forming the Mining and Energy Commission in 2012 as an administrative agency and then appointing eight of its 13 members. The governor appoints the rest.

One of the lawyers representing the plaintiffs in the fracking case, Derb Carter of the Southern Environmental Law Center, said he’s pleased with Stephens’ ruling.

“The important thing to us is to not allow fracking to proceed under rules and regulations adopted by this commission,” said Carter, the law centre’s director for North Carolina.

McCrory, a Republican, signed a law last summer clearing the way for permits to be issued this year for fracking. Scientists believe pockets of natural gas exist in layers of shale under Chatham, Lee and Moore counties southwest of Raleigh, but there are disputes over how much.

Rules governing fracking that were developed by the Mining and Energy Commission took effect in March, clearing the way for the state to start issuing drilling permits. Before asking the Department of Environment and Natural Resources for a permit, applicants must acquire mineral rights for several hundred acres of land, a parcel known as a drilling unit, and have the unit approved by the commission.

The lawsuit also asked the judge to throw out the commission’s rules and void their actions, but Stevens said the commission can continue other work pending the case’s outcome.

The commission’s chairman, Vik Rao, said the judge’s order “is fair in the sense that it doesn’t shut us down from doing good work, but it does shut us down from allowing permits to go forward.”

For example, the commission is taking a closer look at air emissions from hydraulic fracturing, which Rao said was in response to the plaintiffs’ concerns.

The state’s march toward hydraulic fracturing has prompted a passionate debate. Proponents say the extraction method can be done safely and that cheaper gas will help manufacturers and increase jobs in the state. Detractors fear that toxic chemicals could escape the wells and pollute soil and water.

The Mining and Energy Commission received nearly 220,000 public comments on the rules and considered them during revisions this fall. The commission has been debating and rewriting rule proposals since mid-2013.

The Associated Press