Since the Department of Environment and Natural Resources has not received any applications yet, the ruling essentially stops fracking in North Carolina.
Stephens’ decision earlier this month prevents the Mining and Energy Commission from approving drilling units for hydraulic fracturing, or fracking.
The process involves injecting water, sand, and chemicals to break apart underground rocks so gas can be collected.
“The decision stopped any immediate harm to North Carolina residents from a commission formed by the state legislature in violation of the separation of powers firmly established in our state constitution pending further court deliberations,” said John Suttles, the senior attorney at the Southern Environmental Law Center
Suttles represented the Haw River Assembly and Lee County property owner Keely Wood Puricz before the court.
The lawsuit questions the legality of the Mining and Energy Commission.
Attorneys argue that the Legislature overstepped the authority of the executive branch by creating the MEC in 2012 as an administrative agency and then appointing eight of its 13 members.
Gov. Pat McCrory appointed the rest.
The lawsuit states this violates the North Carolina Constitution’s separation of powers.
The state Supreme Court will hear arguments in June on a separate lawsuit by McCrory and two of his predecessors that challenged how several other state commissions were appointed.
A panel of judges sided with McCrory earlier this year in striking down the way lawmakers appointed those boards, and the decision was appealed to the high court.
The outcome of that case is expected to determine the outcome of the fracking lawsuit.
The MEC created rules that regulate fracking in our state, that took effect in March, clearing the way for the state to start issuing drilling permits.
The fate of those rules is now unknown.
“These rules are completely inadequate to protect the environment, to protect water quality, to protect groundwater to protect the property of citizen’s who live next to sights that would be subject to fracking so our hope is that this entire set of regulations be withdrawn,” said Derb Carter of the Southern Environmental Law Center.
The lawsuit asks the judge to throw out the commission’s rules and void their actions.
DENR disagrees. The department issued the following statement:
“DENR opposed the request for an injunction because we believe that the rules promulgated by the Mining and Energy Commission will remain valid and enforceable even if the court rules that the appointments to the commission are unconstitutional. Our position is consistent with the governor’s lawsuit and supported by a legal opinion from the Attorney General’s office in 2000.”
That opinion states: “Even if it were found that a commission member holds office unlawfully, actions taken by the Commission during the member’s time of service are valid,”
However, DENR said it agrees that Legislative appointments of members to a commission that exercises executive powers are unconstitutional because they violate the Separation of Powers clause of the North Carolina constitution.
The MEC, which is represented by the Attorney General’s office, took no position on the lawsuit.
Stevens said the commission can continue other work pending the case’s outcome.
The process to obtain a drilling permit is basically as follows:
- The applicant must apply for a drilling unit. DENR and the Mining and Energy Commission have not received any requests for a drilling unit, which is necessary in order to start the permitting process for hydraulic fracturing in North Carolina. The operators shall follow the requirements and process set out in state rules. This is the step the judge’s ruling has halted.
- Once an applicant has received a Mining and Energy Commission-approved drilling unit number, he or she can then apply for an Oil or Gas Well Permit.
- He or she shall be required to follow the rules and criteria set forth in Section 1300.
- Based on agency review, the MEC may conduct a hearing to determine the amount of the environmental damage bond to be set.
- Once the bond amounts have been submitted to the Department, the applicant shall be issued an oil or gas well permit with an API number.