The Basis For Action by The Commission on Marcellus Shale Fracking and Water Protection

§7-1-3kk. Authority to provide for the elimination of hazards to public health and safety; penalty.
In addition to all other powers and duties now conferred by law upon county commissions, commissions are hereby authorized to enact ordinances, issue orders and take other appropriate and necessary actions for the elimination of hazards to public health and safety and to abate or cause to be abated anything which the commission determines to be a public nuisance. The ordinances may provide for a misdemeanor penalty for its violation. The ordinances may further be applicable to the county in its entirety or to any portion of the county as considered appropriate by the county commission.

For the record my small farm is not leased for gas drilling and, in fact, is under the Farm Land Protection Program and may never be used for drilling or mining or any other extractive process.

What is your plan to keep drilling from happening,or to stop what has already begun? . Will you get help from the authorities of the National Forest?Will they send out helicopters to check for shale drilling projects or will the state do so ? If you find someone drilling, who physically stops them?
Pocahontas is remote and sparsely settled, so drilling on large private tracts of land or in the area of the forest may not be reported.

Marty, thanks for your reference to state law but please don't forget the US Constitution which says that gov shall not take property without just compensation. That is federal law. If you pass a moratorium as suggested, you need to be prepared to pay those who have gas under their property. You can't take their minerals without paying them. Those belong to them.

As a point of reference, you might want to check with Senator Walt Helmick who had coal under the National Forest. See what happened when the gov tried to refuse him the right to mine his goal. That will be something of a bell weather in the future.

Plus you might want to consider that hydrofracking has been approved of by our state government. In fact, it is so "safe" that the salts which are buried 5,000 feet deep are considered so safe by the state that they have declared that they can safely be used as deicer on the highways. If that is the case, what would we have to worry about in regard to clean water. All roads have side ditches which are designed to collect water and direct them to the adjacent stream.

How can you say that hydrofracking is hazardous when it is allowed to enter our water supplies?

martin are you willing to ban natural gas or anything made from natural gas from being sold in poca co.

Note to "been here": Are you saying: Because we ban private ownership of nuclear weapons we should also ban electricity from nuclear power plants? And ban light bulbs because they emit some radiation? What does your comment contribute to this discussion? -- Rich

Have at it, Mr. Saffer. You make us all proud.

As to a potential lawsuit based on a taking, §29-12A-5 of the West Virginia Code deals with the grant of immunity from liability to certain governmental bodies, including county commissions. It reads, in pertinent part:

“(a) A political subdivision is immune from liability if a loss or claim results from:

(1) Legislative or quasi-legislative functions;

(2) Judicial, quasi-judicial or prosecutorial functions;

(3) Execution or enforcement of the lawful orders of any court;”

(4) Adoption or failure to adopt a law, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy;”

Were the Commission to enact an ordinance banning drilling, and a suit resulted claiming that the ordinance had “taken” property, the Commission would claim immunity from suit under §29-12A-5 because the statute gives immunity to the Commission from suits arising under its legislative functions, and from suits arising out of the adoption of a law.

Obviously, thorough legal research should be done on the liability question. But it seems that the County may be immune from liability if it enacts an ordinance. This doesn’t prevent a court from overturning the ordinance. But it may keep the County from being liable for damages if it turns out that the ordinance exceeds the powers of the Commission.

Higher Ground: I believe the statute you refer to applies to personal liability protection for Commissioners acting in their lawful legislative capacity and to to an immunity for the County itself on a "takings" liability if found. I have submitted this to the Law School for their view. Will advise further.

This ultimate question is still up for grabs but is a seedling thrown upon the barren ground of little precedent.

Professor Bastress wrote, "the argument -- that fracking is simply a form of common law nuisance that local governments can prohibit. The counter is that, without the ability to frack, the driller's acquired interest in the Marcellus shale is totally worthless. My growing sense is that the resolution of the competing interests rests entirely on the leanings of the judicial decision-maker."

If the courts hold that fracking is a legitimate form of drilling, overriding the health and pollution arguments, then another recourse could be to pass fair and equitably applied ordinances that give us at least some heightened degree of protections above what the state is likely to enact.

For example, mandatory test sampling of nearby water wells before drilling, within the radii of the horizontal field. Paid for by the drillers by an independent firm, for baseline water quality.

Restriction on water consumption. Restriction on storage of the removed fracking fluids/water (must be covered, lined, removed within a certain time frame, etc.

Restriction on amount of truck traffic, and including narrow roads, time frames, etc.

Restriction on flaring as a source of light pollution.

As far as Takings, I still argue that the gas industry would be guilty of takings, too, in the sense that it may depreciate nearby property values, harm certain businesses such as the tourism industry, and disrupt quality of life.

Again, Takings should be ruled as commensurate with safety, health, community values, and the long-range integrity of the local communities and ecosystem.

After pressure from the county commission and many citizens, the state denied a permit to blast apart the mountain near Huntersville, on the basis that it would have severe adverse affect upon quality of life in the community.

Where will Pocahontas get the money to pay for all this gas to which Norman alludes? Another

question---Is it true that CCS and council members cannot be sued for acting in their official capacity?Can they be sued for not acting ? I would like to hear comments about this topic ; it connects with the Durbin situation now. There, mayor and one council person is in litigation over a right of way just to spite a citizen with whom they are angry. This citizen caught one stealing and brought action against him. Right of way discrepancies abound in Durbin even where land has been surveyed,but Mayor council dismisses them with"The town does not get involved in these disputes".

There are those who claim that a particular "nuisance" will lower the value of their land thereby depressing its worth. That is a fairly hazy suggestion. However, mineral rights are themselves of great value and a moratorium would in essence make the harvesting of those minerals impossible. The cost would be calculable at the assessor's office. It would be easy to make the case that a moratorium has reduced the value of the land and the landowner has a right to be compensated for that loss. We can see our loss with a moratorium. We can actually calculate the cost.

Perhaps you might suggest that I want the best of both worlds (have my cake and eat it too). So be it. Either allow me to lease and drill or pay me for my assets. Either way the landowner gets paid and that is a happy prospect. I don't care who buys my assets as long as the assets are paid for!!

To Norman Alderman: It is your land do with it what you please. Sell it piece by piece for as much silver and gold and paper money as you can get, layer by layer, tree by tree, and fracture it into surface, gas, minerals, clay, limestone, coal, topsoil, and dust if you like. It is absolutely your choice not mine. Live your life and have your values as you judge best. No one is suggesting otherwise. The discussion about hydro-fracturing really is not about you and your actions and choices made and limited on your land....it is about the public health risks that can spill over to everyone else by hydro-fracturing that is of concern. The issue before everyone is clear; at what point in the law does the creation of damage to public health and safety and creation of common law nuisance limit the right of private gas and mineral extraction?

The depth of the minerals is not the question; it is the title to them which can only be determined by an exhaustive title examination.

When the county developed the Farmland Protection Board, they established a precedent that the county would be willing to pay for certain "rights". Those rights were delineated carefully and lawfully. How shall we (or the county) mandate that certain rights are not to be purchased but merely terminated by government action? I contend that mineral rights are a commodity that can and should be purchased, traded, or sold. Mineral rights are a tangible asset to any piece of land. No one has a right to detract from the full and complete exploitation of the assets of a piece of land.

I am merely following the lawful example set forth by the CC. They are the ones who have set themselves (Farmland Protection Board) as a purchaser of property rights. The rubber has hit the road. I myself am willing to following their example to its logical and legal conclusion. The right to mine (drill on) my property on Beaver Creek is just important to me as someone who might own minerals on Briary Knob. I am watching carefully the discussion regarding the "temporary" nature of the moratorium proposal. Unfortunately, I have immediate needs. The county has a source of revenue to purchase my assets.

There is going to be major consternation when those people who have sold their property rights to the Farmland Protection Board wake up and realize their by-gone rights may have been worth a thousand times more that they got from the county. There is coming a "GREAT AWAKENING" shortly.

Ownership of gas deposits a mile underground cannot be determined ;that is why the Alaska action is wise and fair.,why it should be adopted in Pocahontas County.In this topic , though, I am aware that past is prologue:greed and out of state money will win in WV again as in the mountain top mining . A slight segue here: one of those making a movie about mountain top removal has said that the state is a banan republic.I suppose he means a coal and gas republic.
But to change prologue , we must act now by banning destructive gas drilling until we can prod the state or federal government to enact and enforce safety rules. We do not know how much of this drilling has already taken place, how many aquifers have been contaminated as we tarry.I would like to see some spokesperson or commissioner contact National Forest authorities and Senator Rockefeller, SnowShoe et al for help in keeping water supply clean. Would any of these want dangerous water in Pocahontas County?

Excellent CC letter signed by Commissioner Fleming. Sincere thanks to all involved. Please keep after them and advise us of any progress.

The example of Alaska is enlightening. Here’s some interesting data:

The median family income in Pocahontas County is $30,757 per year. Of that amount, the State takes about ten percent for income, sales and property taxes.

According to a recent WVU study, gas companies make several billion dollars a year from our gas. Of that amount, the state gets about ten percent in severance fees and other taxes.

In other words, a family struggling to keep food on the table and patch holes in the roof pays state taxes at the same rate as big gas companies with incomes in the hundreds of millions of dollars.

Doesn't this seem a bit unfair?

In Alaska, the ‘severance’ tax on oil and gas is 25%. In West Virginia, it is 5%. In Alaska, 77% of their state budget is paid for by the oil and gas industry. In West Virginia, less than 8% of the budget is covered by oil, gas and coal severance taxes.

If West Virginia had the same severance tax as Alaska, a family with a $30,000 income would be getting money from the State, not paying money to the State.

There are two reasons why we are worse off than Alaskans. First, State politicians depend on money from the coal and gas industries. It would take a People’s March on Charleston to change their loyalties. Second, West Virginians don’t care enough to demand fair treatment from their government.

Unlike Alaskans, we West Virginians don’t mind paying unfairly high taxes so that huge corporations can rake in absurdly high profits. How curious...
-- Rich

July 29, 2011
Industry group slams New Martinsville's gas-drilling ban
By The Associated Press
NEW MARTINSVILLE, W.Va. -- A natural gas industry group says New Martinsville's new ban on drilling within city limits is ill-conceived, and workers may start taking their business elsewhere.

"We have to react,'' said Michael McCown, president of the West Virginia Independent Oil & Gas Association. "We do not want to do commerce in communities that do not want our business.''

Mayor Lucille Blum told The Intelligencer that City Council wants to protect its residents' drinking water, which comes from wells.

"We are not doing anything against the gas companies,'' she said. "We are only concerned with protecting our water supply.''

"We appreciate all of these gas companies being here,'' Blum added. "We have no animosity toward them and are glad they are here.''

New Martinsville is at least the fourth West Virginia city to adopt a municipal drilling ban.

Passed unanimously earlier this month, its ordinance forbids "exploration, extraction, production, development, mining, leasing and/or drilling'' within city limits. Whether on private or public property, it says, the machinery used for oil and gas production "is strictly prohibited and shall constitute a public nuisance.''

The ordinance further declares drilling "detrimental to the health, safety and general welfare of the public.''

Most of West Virginia sits atop the vast, mile-deep Marcellus Shale gas reserves, and the drilling industry is in high gear throughout northern West Virginia.

Reaching the reserves requires deep, horizontal drilling and hydraulic fracturing technologies that the industry insists are safe. Many environmental groups and residents, however, are concerned about water pollution, road destruction and other quality of life issues.

Chesapeake Energy, which has a large presence in the region, hopes New Martinsville will reconsider.

Chesapeake believes existing regulations, its own best management practices and emergency rules requested by Senate President Earl Ray Tomblin, acting as governor, "are able to provide the city with a level of comfort to address any environmental concerns they may have,'' said spokeswoman Stacey Brodak.

Wellsburg banned drilling within a mile of its borders, but City Council has since moved to repeal the ordinance. The cities of Lewisburg and Morgantown, meanwhile, are standing by similar ordinances.

Morgantown, however, is being sued by the driller it targeted. Northeast Natural Energy of Charleston is sinking wells along the Monongahela River, less than a mile from a drinking water intake. City leaders said they had no choice but to protect their water supply in the absence of strong state regulations.

A hearing on Northeast's request for a preliminary injunction preventing the city from enforcing its ordinance is set for Aug. 17 before Monongalia Circuit Judge Susan Tucker.

I guess Pocahontas can wait to see how Judge Tucker rules. Of course, the way the legal system works, Pocahontas will have fracked wells and ruined water up and "running" before the legal system sorts this out. Ban fracking now. If the Commission believes the State will enact meaningful protections, then they should seriously consider the current "acting" governor's refusal to disclose correspondance between his office and the natural gas companies as an indication of the safeguards coming from Charleston. The governor's "emergency rules" were weakened after this non-disclosed correspondance.

My family owns 282 acres of surface and oil and gas rights. Three years ago, we were approached at an offer of $100 per acre up front royalty plus a 12.5% royalty on gas extracted. Many offers have occurred since then. In early June, 2011, the offer now stands at $1,000.00 per acre plus 18% royalty. Many in the family need this "pot of gold." However, we also live on this land and depend upon well water. We can "tap" that pot of gold, but we realize we'd likely be moving elsewhere after drilling commenced given the extreme risks to our water. It's not a risk we desire to undertake. So, go ahead and tap that pot of gold, but be prepared to move elsewhere. And to those who cash in, be prepared to be sued right along with the gas company when you ruin your neighbor's water supply. Any regulation short of an outright ban on fracking should include landowner liablity right along with the gas company liability. After all, that pot of gold should have some strings attached to it.

Regarding your last post, that is exactly why I support a total ban on fracking now before it's too late. Lawsuits over ruined water are worthless, but the take the money and run crowd should still be held accountable by adding in landowner liability IF you do not impose an outright ban.

Just imagine the possibilities. Beckwith cashed in already? Wait for Snowshoe next. The fact that the state is being gouged by these opportunists with their promises of riches will once again prove that we are a State of rubes. There is a reason that the poorest counties in this State, those with the worst infractructure, health, job losses, etc. were the very counties with the greatest coal reserves. It's called corporate rape and our elected officials are nothing but enablers.

So very true. When you make your millions, of course, then you can move to a place just like this WAS if there is still any place left like it was.

The Community Environmental Legal Defense Fund
Pennsylvania Community Rights Network
P.O. Box 360, Mercersburg, PA 17236
www.celdf.org

“Let the People Decide!”
Pittsburgh City Council Votes to place Community Bill of Rights and Ban on Gas Extraction on the Ballot in November

“The Solicitor even goes so far as to say that property owner rights to enjoy their property would fall on the side of drilling rather than banning drilling, and that they might sue. The fear of such suits should not deter us from letting the citizens of Pittsburgh vote on this legislation. The fear of death or degrading of our life, health, and property is much more important. This one is for the children. It’s their future, and we have to get it right.” --- Pittsburgh City Council President Darlene Harris

MEDIA RELEASE
August 1, 2011
CONTACT: Ben Price, (717) 254-3233
benprice@celdf.org

FOR IMMEDIATE RELEASE

(Tuesday, August 2, 2011) On Monday, August 1st, Pittsburgh City Council, by a vote of 6-3, approved the placing of a referendum question on the November ballot that will allow City residents to amend the Pittsburgh Home Rule Charter. The proposed amendment includes a Community Bill of Rights, and a ban on extraction of “natural” gas within the City to protect those rights. Council members voting in favor of the measure were Burgess, Harris, Kraus, Peduto, Rudiak and Shields. Voting against the measure were Dowd, Kail-Smith and Lavelle.

Councilman Burgess, who had abstained from voting the measure out of Committee on July 27th, indicated that no matter what reservations he may have about the amendment, voting his conscience and principles meant that Council should leave it to the People to decide. His vote created a veto-proof majority for the measure, which is significant since the mayor has indicated he may chose to use his veto power to strike the ballot question. However, the Mayor has ten days in which to sign, veto, or let slide any legislation. If he waits the full ten days, it will be past the date when the Division of Elections must have the referendum to put it on the ballot. Council President Darlene Harris has requested in a letter to him that the Mayor act early. There is no guarantee that he will do so. If he decides not to act, the measure might not appear on this coming election’s ballot.

Pittsburgh is a “home rule” city. This means it creates its own laws on any topic not exclusively regulated by the state or federal government. The set of local laws that govern the City are collectively referred to as the City’s Charter. The Charter may be amended either by action of the elected government officials or through a citizen petition. This ballot question will be presented to City voters on November 8th as the result of the adoption of the ordinance by City Council. The amendment proposes an addition to the Home Rule Charter establishing a Community Bill of Rights, which asserts the right of residents of the City to local self-government, to water, and the right of residents to establish energy policies for future sustainability. It establishes rights for natural communities and ecosystems, and empowers community members with legal standing to enforce those rights.

To secure the Community Bill of Rights, corporations would be prohibited from extracting natural gas within the City, with the exception of gas wells already established and in operation at the time of adoption of this amendment. In addition, corporations engaged in the extraction of natural gas, or intending to do so in the City, would no longer be legally viewed as “persons” and could not avail themselves of protection of the state or federal constitutions in a way that would nullify the rights of human and natural communities recognized in those constitutions and by this Charter amendment.

The Council’s vote in favor of presenting the Charter Amendment is particularly significant, since prior to the vote Council members received a memo from the city’s Law Department titled “Re: Council Bill No. 2011-1939 Ordinance to place before voters referendum question whether to amend Home Rule Charter of the City of Pittsburgh,” which responded to this question from Council:

“Does the legislation conflict with Federal, State and/or Local law?”

Solicitor Daniel Regan responded in part:
“The Law department believes the proposed ordinance may violate 53 Pa.C.S.A. §2962(f) (Home Rule Charter and Option Plans Law) due to the City being preempted from placing duties, responsibilities and requirements on businesses beyond what has been placed on them by the Commonwealth of Pennsylvania.
“The Law Department believes the proposed ordinance is preempted by the Pennsylvania Oil and Gas Act (58 Pa.C.S. §601.101 et. seq). Said belief is supported by the PA Supreme Court case law: Huntley & Huntley, Inc. v. Borough of Oakmont, 964 A.2d 855 (Pa. 2009) and Range Resources v. Salem Township, 964 A.2d 869 (Pa. 2009).

The Law Department has also identified various Constitutional issues which it has not had adequate time to fully analyze at this time. Potential areas of concern relate to the Commerce Clause, Contracts Clause, Substantive & Procedural Due Process and takings of property without adequate compensation.”
Solicitor Regan concluded that “In light of the above, it is the recommendation of the Law Department that no further action be taken on the legislation until we are able to complete our analysis”.

Prior to comments from Council regarding the pending vote, Council President Darlene Harris addressed the Council, saying, “On the Marcellus Shale, bill 1939, we all received a memorandum this morning from the law department and the solicitor’s opinion concerning that bill. With all due respect, he brings in state packaging laws that say that cities can’t enact laws about safety and health; he tries to apply them to natural resources.”
She went on to say that [Solicitor Regan] “says that the Oil & Gas Act regulates gas extraction, so anything it says would supersede any law passed by a municipality. The state regulates it, so the cities have no opinion. But the state also regulates liquor sales, and still Bellevue chooses not to have liquor sales. They voted that on a referendum last election.”

Mrs. Harris continued: “Mr. Regan quotes the Oil & Gas Act as being very permissive, in that drilling can happen wherever the companies wish, as long as they get the permits, and comply with zoning laws. In my own opinion,” she continued, “it’s that if the City can regulate other quality-of-life issues, such as noise and light and billboards, and traffic safety and safe sidewalks and homes, then the citizens should have some say over our health and welfare in this matter.”

“The Solicitor “she reminded the Council, “states that the City might be subject to a Constitutional claim. He feels that the citizens or corporations will sue for a violation of their rights. The Solicitor brings in potential violations of Due Process under Section 1983 of the Federal Code. He says that those who hold mineral rights are being denied life, liberty, or property without due process of law. But the reverse argument is that if we permit drilling, then all of the neighbors of that person are being denied life, liberty, or property. The reverse argument is much stronger.”

Mrs. Harris went on to say that “the Solicitor even goes so far as to say that property owner rights to enjoy their property would fall on the side of drilling rather than banning drilling, and that they might sue. The fear of such suits should not deter us from letting the citizens of Pittsburgh vote on this legislation. The fear of death or degrading of our life, health, and property is much more important. This one is for the children. It’s their future, and we have to get it right.”

Councilman Doug Shields, who introduced the measure on July 27th, commented that adding the ordinance language as part of the Charter would strengthen the ordinance and make it harder to overturn, because in the eyes of the court, the Home Rule Charter is the City’s constitution. Just as a constitutional amendment is much stronger than a statute passed by Congress, this proposed amendment will strengthen the voice of the people by putting it directly into the Charter.

He also commented that the proposed amendment could not be repealed by a future City Council. Any future attempt to remove the ban would have to be approved by the voters of the City of Pittsburgh.
Unlike the ordinance, the Charter Amendment wouldn’t rest solely on City Council’s preferences and choices, and the Council could treat the charter amendment as the mandate of the people of the City of Pittsburgh, thus making it less politically sensitive to administer.

When asked why he thought it wise to bring the matter to the voters, Councilman answered that “On matters of such importance how can you not go to the people for their advice and consent? That s something the Commonwealth of Pennsylvania forgot to do. I encourage concerned people to call Mayor Luke Ravenstahl (412 255 2626) and let him know you'd like to cast a vote on the subject. When corporate special interests outweigh people’s rights, well, then where do we go from here? Throughout history, democracy has served us well. I hope we continue to embrace that concept and let people govern themselves."

The question of whether or not the Charter Amendment becomes part of the City’s local constitution is now up to the people of Pittsburgh. On November 8th, they will be asked to vote YES or NO to this question:

"Should the Pittsburgh Home Rule Charter be amended to add Section 104 “The City of Pittsburgh Bill of Rights”, which enumerates the right to water, the rights of natural communities, the right to a sustainable energy future, and the right to self-government, and which secures those rights by banning corporate gas extraction within the City and subordinating corporate rights to the rights of Pittsburgh residents?”

A majority vote in the affirmative will mean that Pittsburgh makes history by taking a stand for Community Rights over corporate privilege, once again.

The concept,the meaning and purpose of government,local, state, federal,is unclear in Pokey:ie, who controls drilling, mining in the national forest where there is no representation at all in county governent? Then there is the strange entity of municipal corporations which have an officially admitted uselessness except for "leash laws" and street lights in a tiny area of the county. With the fascinating case of unincorporation for Durbin approaching,cc would do well to consider a change in county government.It is odd that they can decide an incorporation-unincorporation issue ,but have no authority or oversight in fiscal matters, however suspicious ,or doubtful or unfair.In sum, where is the authority to stop fracking once it starts when miniscule Durbin cannot be controlled?