WVU Law Professor Answers Questions About County Rights At Pocahontas County Commission Meeting

Marlinton, WV – Bob Bastress, Professor of Law at WVU spoke with the Pocahontas County Commissioners earlier this week concerning Marcellus shale drilling and whether the County can ban such practices. Bastress says traditionally in West Virginia, local government power has been limited, something he says should change. However, he says both versions of Marcellus shale drilling regulations currently working their way through the West Virginia House and Senate could make such a ban unenforceable in state cities or counties. Commissioner Martin Saffer asked about the possible outcome of a case in which the County banned drilling on privately owned land without compensating the owner.

Bastress says it would be difficult to predict how the issue would come out as it would involve a Takings’ analysis. A taking’ means that if the government takes your property, it’s has to give you just compensation. A simple example would be the government taking over private land to build a road. He says a ban on drilling could fall into a different category.

“Then you have what are called regulatory takings” he says, “in which the government by regulation prohibits certain uses of property, and it limits the value of that property in such a way that in some cases the courts have said you can’t put all the burden on this particular property owner without compensating for it. In other words, the community as a whole should pay for this.”

He says it’s also possible that the landowner could sue if, for instance, a taking was found to render the land valueless.

“I would expect the land owner or the lease owner in a Marcellus case to say look we’ve leased this shale, and unless we can frack, the lease is valueless” explains Bastress. “You’ve totally rendered this property I have, this shale, valueless because the only way I can extract any value out of it is to go down there and horizontally extract it with fracking.”

Bastress says that drillers would argue that if the drilling is safely, it can be done right. But he says that doesn’t take into account other collateral factors like increased truck traffic, noise, even an increase in crimes such as drug traffic and prostitution in some counties. In the Morgantown case, Bastress says they consulted with a hydro geologist, who’s developed a theory about the drilling practice using computer modeling.

“He says even when done right, this fracking can present threats to the water supply” says Bastress. “The drillers theory is that you drill down 7000 feet, that water is mostly going to stay down there, and as long as they’re shooting the water down in casing that’s adequately made, and bring back up the [approximately 20%] fracked water, as long as the casing is good, you won’t have a leakage or seepage into the aquifer. Our hydro geologist expert though, says that there are natural faults in the geology and the rocks, and the gas can leak out.”

Bastress says the gas leakage has already been documented in wells drilled in Pennsylvania, with methane getting into water wells. He says it could happen with water as well according to the hydro geologist.

“If there are artesian pressures in the area the water naturally flows up through these artesian faults” he says. “It could take 10 years, it could take 5 years, maybe 100 years, but if the artesian pressures are there, it will work it’s way up to the aquifer.”

He says it could also bring naturally occurring toxins and brine that could also contaminate a water source. And he says the industry is not looking at this issue at all.

During public comment, Jay Miller asked if the county could argue that given our unique geology, there’s no way to safely encase a well to allow it to withstand the pressures of hydrofracturing. Bastress says the short answer may be yes.

“Part of nuisance analysis is is this a pig in a parlor’; is this an activity that’s in the wrong place” says Bastress. “I think you’d have to establish that, but there are characteristics of Pocahontas County which make fracking a nuisance in this County even though it might not be in Wetzel County.”

Sarah Riley says although her family opted to not sign a lease, she worries about county residents who have signed them, perhaps without being fully aware of all that entails. She says it’s important to make sure they are protected as well. A voter referendum has also been suggested to get a better idea of whether county residents want a ban on drilling in the county.

But Beth Little says she’s not sure whether residents have a complete enough understanding of the noise, truck traffic and other activities that go along with a drilling operation. She’s also worried about the influence gas companies might have on voters through advertising prior to a vote.

“There could be money spent to dissuade people, and the gas industry has a hell of a lot more money than we do” says Little. “That’s one of the frightening things going on in the state right now. I don’t have a TV, but I understand that the media is inundated with commercials touting natural gas.”

Miller asked Bastress whether or not Pocahontas might be on the bleeding edge’ of this fight. Bastress says he feels Morgantown has already faced that, but offers some advice for the County if it pursues a ban.

“To defend the ordinance in Pocahontas County, you’d have to identify I think, why a ban is needed here” he says. “Because I don’t think I could defend a ban in some other counties, because these wells can be done safely and regulation is an easy alternative to banning.”

Following the public meeting, the Commissioners met with Bastress in an executive session. The reason given for the closed door session was to discuss legal issues, even though Bastress doesn’t legally represent the Commission. Following the executive session, the Commission voted two to one to hire Bastress as a legal consultant on the Marcellus issue. Commissioner Jamie Walker opposed the motion.

“I have a lot of mixed feelings about the actual facts from speaking to some people that was on the drilling side of it” he says. “I feel we’ve got a few other options that would be less costly to the county at this time.”