N.C. General Assembly restricts local governments on fracking

By Maggie Simmons

Stokes County, N.C., residents applaud after county commissioners approved a three-year moratorium on fracking. A new state law seeks to invalidate the Stokes ordinance and others like it. Photo by David Dalton of No Fracking in Stokes

In the early morning hours of Sept. 30, the North Carolina General Assembly approved Senate Bill 119, which contains a provision that invalidates local ordinances put in place to regulate oil and gas operations.

The provision was added to the legislation just days after commissioners in Stokes County, N.C., unanimously approved a three-year moratorium on fracking.

The provision does not counteract the moratoria already in place in communities across the state, nor does it bar local governments from approving a moratorium. But it does make it easier for the N.C. Oil and Gas Commission to preempt such an ordinance. So it may deter the efforts of some counties aiming to pass similar ordinances, such as Chatham and Lee, which both removed fracking moratoria from their agendas following the approval of Senate Bill 119.

Previously, in order to preempt a local ordinance, state law required the Oil and Gas Commission to determine that it was put in place with the intent to “‘prohibit’ oil and gas exploration, development or production,” according to Richard Whisnant, a professor of public law and policy at the UNC School of Government. “Now, it just has to find that the local action is intended to ‘regulate’ oil and gas.”

At least one legislator regretted his vote in favor of the bill. Rep. Bryan Holloway, R-King, whose district includes Stokes County, voted in favor of the bill under the impression that it covered only technical changes. “Had I known the provision was in there, I wouldn’t have voted for it,” Holloway told reporters.

The provision “was not introduced in any bill during the session, was not germane to [Senate Bill 119], was introduced after the crossover deadline, was never heard in an appropriate committee and was never analyzed for the fiscal burdens it placed on local governments by a fiscal note,” said Ryke Longest, a professor at Duke University School of Law and Nicholas School of the Environment.

“Therefore, this changed language violated the rules which the legislature enacted for itself to govern how it handles legislation,” Longest said. Given the nature of how the provision was added to the bill, a court may have to determine its legality.

According to the text of Senate Bill 119, the provision aims to “maintain a uniform system for the management of oil and gas exploration, development, and production activities.”

Many doubt the provision was included solely for that purpose. Mary Kerley, spokeswoman for No Fracking in Stokes, released a statement condemning the General Assembly’s actions:

“[Stokes County] commissioners listened to the people of both parties and did the right thing. But this sneaky act by the legislature is not just an insult to the people of North Carolina, it also shows yet again that this legislature has no respect for local government. It couldn’t be any clearer that big money and out-of-state interests now own Raleigh, lock, stock and barrel.”

Similar concerns are rippling throughout the state, but some local governments are not backing down. On Tuesday, commissioners in Walnut Cove unanimously voted to hold a public hearing regarding the proposal of a three-year moratorium on fracking.

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