State lawmakers approved a bill in the final hours of the general session last week that includes a provision aimed at countering the moratoria passed by local governments, including Stokes County, on potential hydraulic fracturing, or fracking, the drilling method used to extract shale gas or oil.
A provision in Senate Bill 119 describes as “invalidated and unenforceable” local ordinances that place conditions on fracking that go beyond those restrictions already set by state oil-and-gas regulations.
Lawmakers passed the bill mostly along party lines, with Republicans supporting, days after the Stokes County commissioners unanimously approved a moratorium on oil-and-gas operations for three years — time the commissioners say the county will need to review land-use rules aimed at boosting environmental protections if fracking ever happens there.
The Stokes vote happened last Monday, Sept. 28.
And the bill comes a little more than a week after the Lee County commissioners voted 6-1 to have a draft moratorium drawn up. On Monday, the moratorium was still scheduled for a hearing Nov. 2, according to conservationists. Similarly, Anson and Chatham counties have passed ordinances, and other counties where shale reserves may attract drillers are considering similar actions, according to conservationists.
Last Wednesday, several hours after midnight, state lawmakers in Raleigh approved the counter measure in Senate Bill 119.
The bill’s effect on the powers of local governments was still unclear Monday. Asked whether it nullifies the moratoria that have already been passed, Richard Whisnant, a professor of public law and policy at the UNC School of Government, first responded with one word:
The fracking-related provision “doesn’t explicitly address local development moratoria,” he said, based on a “tentative” first reading.
In fact, Rick Morris, the Stokes County manager, said “our moratorium will remain in effect as passed.”
The moratorium triggers a hearing process in which the state Oil and Gas Commission would have to make four findings to invalidate the Stokes moratorium and ordinances, he said.
The provision changes the text that Whisnant and colleagues had relied on to provide an opinion to Lee County and the city of Sanford about the residual powers of local government to regulate oil-and-gas exploration.
“The changes both implicitly acknowledge that our reading was correct and clearly state the legislature’s intention, going forward, to prohibit local governments from any special regulation of oil and gas, at least for things the state is regulating under (state law) GS 113, and to render any existing special regulations unenforceable,” Whisnant said.
The bill’s provision aims to provide a “uniform system for the management” of oil-and-gas development, including the use of fracking, the bill reads. Supporters point to the provision as a way to promote the idea that it helps create a uniform regulatory platform between state and local governments on which oil-and-gas companies may base plans.
Opponents say the provision is an overreach by the Republican-led General Assembly into the ability of local governments to regulate development in their own communities.
The provision in Senate Bill 119 was disclosed to the full House and Senate — and the public — well past midnight Wednesday.
“It’s sad to see the legislature enact, and the governor sign, language intended to strip local elected officials of the power to protect their citizens’ health and property,” said Grady McCallie, policy director at the N.C. Conservation Network.
“Making it worse, the provision wasn’t in earlier House or Senate versions of the bill — it was added for the first time in conference, literally in the dead of night, on the last night of (the) session. The first time it saw the light of day was when copies of the conference report were distributed, between 3 and 4 a.m., shortly before the final vote,” he said.
The conference report was approved at 4:06 a.m. in the Senate by a vote of 28-15 and at 4:12 a.m. in the House by a vote of 61-22. Sen. Shirley Randleman, R-Wilkesboro, and Rep. Bryan Holloway, R-King, voted for the bill. Their districts include Stokes.
Holloway said Monday that he is “upset” and “angry” about the way the bill went through. He had gotten word from House leaders that the bill covered merely technical changes, Holloway said: “Had I known the provision was in there, I wouldn’t have voted for it.”
Mary Kerley, a Pine Hall resident who helped start the grassroots group No Fracking in Stokes, said the bill’s last-minute passage was a “sneaky” act by lawmakers who are “owned” by “out-of-state interests,” and said she was deeply disappointed in Randleman and Holloway.
“Representative Holloway has previously stood with the people of Stokes County against fracking. We hope that his vote on SB119 was a misunderstanding. As for state Senator Randleman, she has always favored oil-and-gas interests against the clear wishes of her constituents.”
Efforts to contact Randleman were unsuccessful.
In addition to the possible negating effect that the bill may have on land-use ordinances passed by local governments, the way the bill was passed presents problems of its own, according to Ryke Longest, a professor at Duke University School of Law and Nicholas School of the Environment. Senate Bill 119 was supposed to carry technical corrections, but the changes are substantive, he said.
“It is true that someone used the S119 conference committee to sneak in a substantive provision in a technical corrections bill which changed language regarding pre-emption of local ordinances.
“It is also clear that this changed language was never introduced in any bill during the session, was not germane to the technical corrections bill, was introduced after the crossover deadline, was never heard in an appropriate committee and was never analyzed for the fiscal burdens it placed on local governments by a fiscal note.
“Therefore, this changed language violated the rules which the legislature enacted for itself to govern how it handles legislation,” Longest said.
In the end, a court may have to decide, he said.
In Therese Vick’s view, the moratoria that have been passed still stand.
“There is no penalty on local government for imposing a moratorium — it stands until challenged, and continues to stand until pre-empted by the Oil and Gas Commission,” said Vick of the Blue Ridge Environmental Defense League.
Something else to consider: A judge has issued an injunction against the Oil and Gas Commission, barring it from issuing fracking-related permits, Vick said. And the appointment of many state boards and commissions are subject to a legal challenge.
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