A court ruling that invalidates Morgantown's ban on Marcellus shale gas drilling gives West Virginia's oil and gas producers the certainty they need to keep expanding operations, an industry leader said Monday.
"We all along believed the city of Morgantown and some other communities in the state don't have the right to pre-empt the regulatory powers of the Department of Environmental Protection," said Corky DeMarco, executive director of the West Virginia Oil and Natural Gas Association.
"It would be very, very difficult for the DEP to do any oversight with the potential of 100 different sets of rules to comply with," he said.
On Friday, Monongalia County Circuit Court Judge Susan Tucker delivered a victory to Charleston-based Northeast Natural Energy in its legal battle with the city of Morgantown.
Northeast is drilling wells above the Monongahela River about a mile from a city drinking water intake. Citing concern over its water supply and the lack of tough state regulations, the City Council passed an ordinance in June to ban deep horizontal drilling and hydraulic fracturing within city limits and up to a mile beyond.
Northeast called it an illegal power grab, but the city claimed home-rule provisions gave it the power to protect its citizens and its environment.
Tucker sided with Northeast, declaring the state has sole regulatory authority over oil and gas operations.
The Supreme Court has previously ruled that the powers of a municipality are narrowly drawn, Tucker wrote. She added that the high court has also said that when the state and a municipality enact legislation on the same subject, "the municipal ordinance must yield."
The DEP declined comment Monday, and Morgantown is still considering the ruling.
City Manager Terrence Moore said he will meet privately with council members to discuss the city's options, including whether to appeal.
"Our interest at this point, now that legal clarification is reached ... is how do we achieve assurance that safety and welfare will be protected?" Moore said. "Our role is to work with all involved as amicably as possible."
Horizontal drilling and fracking allow gas companies to sink wells deeper than ever, and the industry is in overdrive as it taps the vast, mile-deep Marcellus reserves underlying much of the state.
But four West Virginia communities concerned about possible water pollution decided to go it alone when wrangling state legislators failed to agree on new rules for the industry earlier this year.
Wellsburg rescinded its ordinance last week. City Manager Mark Henne said concern eased after acting Gov. Earl Ray Tomblin ordered the DEP to draft new emergency rules.
New Martinsville is planning to repeal its ban, too, with a final vote set for Sept. 5.
But Lewisburg, the first city to attempt such a ban, is also the last to relent.
Mayor John Manchester, who learned of Tucker's ruling while traveling Monday, said it won't "automatically trigger our City Council's interest."
"We are not reconsidering," he said, "and I believe that having the ordinance on the books still sends a message about the importance of this to our citizens."
Lewisburg sits atop sensitive Karst limestone, known for sinkholes, caves and pristine streams that sink underground. The geologic formations are fragile environments for rare and threatened creatures, from salamanders to the endangered Indiana bat.
City officials say it's a place so special that it has to remain off limits.
Allowing the ban to stand tells legislators and the DEP "to proceed with all due speed" in developing new regulations for the industry, Manchester said. "I think they get it."
No one has challenged Lewisburg's ordinance in court because no one is drilling there yet.
DeMarco said gas companies appreciate the topographic differences in southern Greenbrier and Monroe counties, where high-quality water swirls through interconnected, underground caverns.
"If and when that area begins to be developed," he said, "certain conditions would have to be in place, and I think the DEP recognizes that."