The owner of a Lee County horse farm is asking a Wake County judge to block any fracking permit applications from being processed until courts determine if North Carolina’s fracking regulations are legal.
Since the state’s fracking moratorium was lifted March 17, no permit application has been filed and none is believed to be imminent. But Lee County resident Keely Wood Puricz and the Haw River Assembly say the state’s fracking rules are illegal because they were created by an unconstitutional body, the Mining and Energy Commission.
On Wednesday Puricz and the Haw River Assembly asked a Wake County judge to suspend the state’s fracking rules, basing their legal argument on a court ruling in a similar case last month. On March 16, one day before fracking became legal here, a judicial panel ruled that North Carolina’s newly-created Coal Ash Management Commission is unconstitutional because the legislature appointed most of its members.
Puricz and the Haw River Assembly allege that because most of the Mining and Energy Commission’s members were also appointed by the legislature, the legislature violated the state constitution by creating a legislative body to carry its will. Under the constitution’s separation-of-powers clause, the state’s laws are supposed to be created by the legislature but carried out by the executive branch, overseen by the governor.
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“This is the time to enjoin the [fracking] rules,” said their attorney, Mary Maclean Asbill, of the Southern Environmental Law Center. “It makes sense to hit the pause button while the constitutionality of the Mining and Energy Commission and its rules are under the review by the courts.”
A spokesman for the N.C. Department of Environment and Natural Resources said the agency is reviewing Wednesday’s filing. DENR provides staff support to the Mining and Energy Commission and would work with the commission in reviewing and issuing fracking permits.
If Puricz and the Haw River Assembly prevail, theirs would be the second ruling against the legislature in a pair of very similar cases, and could potentially require a new commission to be formed to rewrite North Carolina’s policy on shale gas drilling.
The Mining and Energy Commission spent more than two years writing more than 120 fracking rules. A new commission, working on an accelerated schedule, could simply adopt the same rules, or similar rules, so as not to lose several years in duplicating the Mining and Energy Commission’s research and deliberations.
In the Coal Ash Management Commission case, which was filed by the state’s Republican governor against the Republican Senate leader, the legislature has appealed the ruling to the N.C. Supreme Court.
According to Wednesday’s filing, Puricz lives on a 12-acre horse farm, at the epicenter Lee County’s potential shale gas drilling zone, but her time here may be numbered. “Puricz and her family have decided to try to sell their land and leave the area rather than bear the risks presented by inadequately regulated gas extraction.”
The filing says the members of the Haw River Assembly are also spooked by the prospect of drilling. “Some of these members are terrified that landowners near them will obtain permits to extract natural gas through horizontal drilling and hydraulic fracturing and that their drinking water wells will become contaminated as a result of this process.”
They contend that the Mining and Energy Commission should be temporarily frozen from any further activity.
“An unconstitutional commission composed of members unconstitutionally and unlawfully holding office cannot promulgate and implement rules, accept permit applications or issue permits,” their filing says.