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Morgantown, West Virginia Faces Lawsuit over Fracking Ban

Jun 28, 2011 | Parker Waichman LLP

A natural gas driller is fighting back in Morgantown, West Virginia after the City Council approved an ordinance that bans horizontal drilling with hydraulic fracturing within 1 mile of city limits. Northeast Natural Energy claims the ban is unconstitutional because fracking is exclusively regulated by the state.

As we reported previously, some Morgantown residents started pushing for the fracking ban 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.  Prior to the vote, the council heard from those for and against the ordinance.  According to a report from the Associated Press, the state Department of Environmental Protection briefly shut the site down in May after the outcry, and the driller agreed to abide by restrictions to minimize the risk of water contamination. Northeast has continued to operate on the site, but has not started fracking.

Northeast Natural Energy’s lawsuit claims Morgantown City Council overstepped it's authority in passing the fracking ban, which it also claims violates the rights of property owners.  Drilling operations in the communities of Blacksville, Granville and Star City, which border Morgantown, would be impacted by Morgantown's ban, yet the city did not seek or receive the consent of those communities, the lawsuit claims.  Northeast Energy also asserts that the Morgantown ordinance creates confusion, as the town of Westover, which is located within a mile of Morgantown, is considering an ordinance to regulate drilling within a mile of its borders.  If Westover ultimately adopts such an ordinance, the company’s drilling operations “will, ostensibly, be governed by three separate, inconsistent and irreconcilable regulations,” the complaint states.

Notheast Natural Energy originally sought a temporary injunction to prevent the ordinance from taking effect.  However, Chief Judge Russell Clawges denied the injunction.   A date for a hearing has not yet been set.

Enrout Properties LLC, the owner of the surface and mineral in the industrial park site outside Morgantown where Northeast Natural Energy is drilling, is also a plaintiff in the lawsuit.

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