WVU Law Professor Talks About Marcellus Drilling At Pocahontas County Commission Meeting

Marlinton, WV – WVU College of Law professor Bob Bastress is very familiar with the ongoing discussions concerning Marcellus shale drilling in the state of West Virginia. That’s because, in addition to teaching constitutional law, he’s also the legal counsel for the City of Morgantown in their fight to impose a ban on drilling within one mile of the city limits. He spoke during a special meeting of the Pocahontas County Commission before a crowd of almost 50 people in a Pocahontas County courtroom. Bastress gives some background on the Morgantown case.

“The City of Morgantown enacted an ordinance this June” he says. “It already had a permitting process for oil and gas wells in the city; there are a couple of traditional gas wells that had been there for a little bit of time. So we amended that ordinance in June to ban horizontal drilling with fracking. And this was occasioned by the fact that we had two wells across the river from Morgantown about fifteen hundred feet upstream from our water intake system.”

He says although the proposed Marcellus well in Morgantown is 7000 feet deep, the City Council felt they need to impose the ban in order to protect the City’s water source. He says the well would need about 5 million gallons of water, most of which the driller had agreed to purchase from the city utility. He says the work on the well sites was well under way when the ban was enacted.

“The drillers, of course, had already drilled one well and had started a second well and so by the time the ordinance was enacted, [they] had invested 7 million dollars into the drilling and casing of these wells” says Bastress. “So they could continue to drill, but the ban would not allow them to frack.”

Bastress says the driller challenged the ban, and Monongalia Circuit Court Judge Susan Tucker struck it down, saying state law preempts the Morgantown city ordinance.

“The legislature in enacting what’s called the oil and gas chapters had intended to occupy the field of oil and gas regulation’ and that there was a permitting process; they had permitted this well, they had signed off on its safety and everything else” he says. “Further, we had attached some conditions to its operation which the driller had agreed to protect the water supply. So she cited all these reasons to conclude that the ordinance was basically void and unenforceable.”

The ruling could set a precedent for other localities who may wish to impose a similar ban, such as Pocahontas County, or those who have already passed a ban, like the City of Lewisburg. Bastress says one reason they sought the ban is because of the lack of regulations concerning horizontal drilling in the state. He shares the same frustrations with the slow pace of progress being made on this issue by the state legislature.

“The [West Virginia] Senate did pass a bill, and the bill almost got through the House, it went through both finance and judiciary [committees], but it never got to the floor” he says. “And then of course the [Acting Governor Earl Ray Tomblin] has issued these emergency regulations which also are in my opinion, inadequate.”

He lists the reasons why he says they are insufficient and why the city pursued the ban.

“The current regulations do not provide for notice to local governments; they provide for notice to local landowners, but that’s all, there is no public comment period” says Bastress. “There are no siting provisions, in other words, there is no limit to where you can site these wells. And the inspector system is wholly inadequate; there are only 15 inspectors statewide, they’re inadequately trained and inadequately paid. And the Governor’s regs don’t have any money in them of course because the legislature has to do that.”

Bastress is unsure whether or not the City of Morgantown will appeal the ruling; he says he would like to see them do so. But he did give the audience some reason for hope, should the county decide to enact such a ban.

“The County certainly, in my opinion, can prevent nuisances and can protect the water supplies, prevent pollution, and promote county interests in a variety of ways” he says. “Most notably tourism and the like which could seen as being inconsistent with having a bunch of gas wells around. So I think there is county authority; state law does not preempt it from dealing with Marcellus shale drilling.”