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West Virginia Judge Kills Morgantown Fracking Ban

Last month, we blogged about Morgantown, West Virginia’s passage of an ordinance that banned shale gas drillers from using hydraulic fracturing (fracking) techniques in the city or within a mile of the city’s limits. Northeast Natural Energy and Ern-out Properties LLC sued the city shortly thereafter in Monongalia County Circuit Court, claiming that the city violated their constitutional rights by adopting a regulation that undermined the state laws that regulate shale gas extraction.

On August 12, 2011, Judge Susan B. Tucker struck down Morgantown’s fracking ban, finding that the West Virginia Department of Environmental Protection has “exclusive control of this area of law.” According to the Court, the West Virginia Department of Environmental Protection’s regulations preempt the city’s ordinance and therefore render the fracking ban invalid. Judge Tucker conceded that that the environmental issues regarding the fracking process are “foremost in the public’s concern,” but stated that it is the role of the state, not the municipality, to address those issues.

A growing number of New York municipalities have passed bans similar to the Morgantown ban. Yet different state laws governing shale gas extraction could lead to a different result regarding bans in New York. It remains to be seen how New York courts will apply New York’s state oil and gas laws, which differ from West Virginia’s, in reacting to such bans.

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