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Morgantown Loses in Bid to Ban Fracking

Aug 16, 2011 | Parker Waichman LLP

An energy company has prevailed in its quest to kill Morgantown, West Virginia's fracking ban. Last Friday, Monongalia County Circuit Judge Susan Tucker ruled that a ban on hydraulic fracturing within a mile of Morgantown city limits was preempted by state law.

As we reported previously, the Morgantown fracking ban was enacted earlier this spring, when it was learned Northeast Natural Energy had begun operating wells just upriver from the area’s drinking water intake on the Monongahela River. Northeast Natural Energy originally sought a temporary injunction to prevent the ordinance from taking effect.  However, that was denied.

 Northeast Natural Energy then filed suit, claiming, among other things, that Morgantown City Council overstepped it's authority in passing the fracking ban, and violated the rights of private property owners.

On Friday, Judge Tucker agreed with Northeast Natural Energy, ruling that the ordinance was preempted.

"Governmental entities are required to supplement and complement the efforts of the state by coordinating their programs with those of the state," she wrote. Where there's a conflict, the state Supreme Court has ruled, "The municipal ordinance must yield."

Morgantown officials have not said if they will appeal, though Judge Tucker's order is being reviewed.

"If we did appeal it, I'm not sure exactly how that would end up," Mayor Jim Manilla told WV Metro News.  Manilla pointed out that if the appeal is not successful, Morgantown could end up having to pay millions of dollars to Northeast.

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