*UPDATE* Federal Judge: Fayette County Disposal Well Ban “Unenforceable”

UPDATE (9/1/17, 11:30 EST)

A West Virginia federal appeals court on Wednesday upheld the 4th U.S. District Court’s June 2016 ruling, agreeing that Fayette County’s ordinance banning disposal of natural gas production is invalid.

According to the Charleston Gazette-Mail, the appeals court ruled in a 2-1 decision that the ordinance is pre-empted by state law, namely provisions of the West Virginia’s Oil and Gas Act and the state Department of Environmental Protection’s underground injection control (UIC) program, which permits and regulates wastewater injection in the state,

“We agree with the district court that the West Virginia Legislature, in enacting its complex regulatory program for injection wells, did not leave counties with the authority to nullify permits issued by the state,” the appeals court said.

The Gazette-Mail also reported that the author of the decision, Judge Pamela Harris, noted that a blanket ban sought by Fayette County officials was inappropriate considering the action was prompted by concerns over just two wells,

“What the county may not do is override the state’s licensing decisions by imposing a blanket ban on the operation of properly operating UIC wells within its borders,” the appeals court said.

— Original Post, June 14, 2016

Late last week, a federal judge in West Virginia ruled against Fayette County’s ordinance that banned the storage, disposal, or use of waste produced from oil and natural gas development within the county’s borders on the grounds that it was pre-empted by state and federal laws. According to MetroNews:

“In a 45-page ruling, U.S. District Judge John T. Copenhaver Jr found that the Fayette County ordinance violated portions of West Virginia Oil and Gas Act and the Safe Drinking Water Act, was unenforceable in allowing for civil enforcement actions against violators of the ordinance, and that jurisdiction for this type of regulation belongs to the WV DEP.”

The article goes on to explain that county commissioners passed the ban back in January because of a study that had been done in the county on potential impacts on water in the area from endocrine disruptors. When the full version of that study was released in April, EID took an in depth look at it. The reality was that researchers found exactly zero samples in which toxicity was high enough to cause harm to humans. In fact, the EDCs detected in water samples would only be considered dangerous if they were 40 times the concentration levels collected. The study, which was conducted by researchers with close ties to ban-fracking groups, also failed to provide context on EDCs, which are found in numerous products we use every day.

Meanwhile, a 2015 study conducted by the United States Geological Survey (USGS) that looked at samples of water throughout the Marcellus Shale play in West Virginia and concluded that “no significant difference was found in comparison of groundwater survey data and historical data.” In other words, there was no change between historic water samples and present ones that indicated fracking is impacting water in the region.

While Judge Copenhaver’s ruling may have seemed surprising to the activist groups backing the county and that helped draft it, like Headwater Defense, it actually aligns with local ban trends occurring in other states.

For instance, just last month the Colorado Supreme Court ruled that the City of Longmont’s fracking ban and the City of Fort Collins’ five-year moratorium were “invalid and unenforceable.”  As Colorado Public Radio reported, the court put it simply to anti-fracking groups: “We are not persuaded.”

And last year, Ohio’s Supreme Court also ruled that the Home Rule clause of Ohio’s constitution does not give local governments the authority to supersede drilling activities that are permitted by the state.  This decision specifically speaks to the various local ballot initiatives to ban fracking that activists have been pushing in Ohio.

States like Ohio and Colorado have been heavily targeted by national activists, like the Community Environmental Legal Defense Fund (CEDLF), dropping in on local communities and trying to force bans against oil and gas development on them.  At the end of the day, these initiatives have costs taxpayers in some communities tens of thousands of dollars.

Not only do these bans raise fears of potential bankruptcy for local communities, but according to a new map last year from the National Center for Policy Analysis (NCPA), they also pose issues for our nation’s economic growth and energy security. As NCPA Executive Vice President/ COO Jacki Pick explained in the press release,

Fracking bans and prohibitive fracking regulations are a threat to this country’s economic recovery and superpower status.  Enhanced energy production through fracking can help the U.S. revive its economy with unprecedented growth, greatly reduce the national debt and trade deficit, and ensure that we maintain our influence on the world stage.” (emphasis added)

While the West Virginia ban may not have been a direct “fracking” ordinance, it was an attack on the infrastructure needed to develop the region’s oil and gas—a trend that has been initiated by fringe activists as part of the Keep-It-In-The-Ground movement. These groups, while in the minority opinion across the country, are working to shut down pipelines, storage facilities, and any other needed infrastructure that is used as part of this process. Fortunately taxpayers and the courts across the country have continued to stand up to these efforts, making science-based decisions despite the rhetoric being thrown at them.

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