New Jackson board passes anti-fracking resolution
Applause broke out as Jackson County Commissioners concluded a unanimous vote last week passing a resolution opposing hydraulic fracturing — known as fracking — in their first regular meeting since a new board was sworn in.
“I tell you what, I was grinning from ear to ear and was still grinning from ear to ear at midnight. I was really happy,” said Donna Dupree of the Jackson County Coalition Against Fracking. “[Commission Chairman] Brian [McMahan] has made a campaign promise that his first business he would do as chairman would be to pass a resolution against fracking, and he fulfilled that campaign promise.”
Fracking supporters credit the evolution of horizontal drilling and fracking techniques with reducing American dependence on foreign oil and claim that technology has come so far in the past decade or so as to render many opponents’ concerns about the practice outdated. But opponents say it contaminates groundwater, pollutes the air and scars the landscape with the trappings of heavy industry — the short-term benefits can’t come close to justifying the long-term consequences, they say.
“I take our environment very seriously,” said Brian McMahan, who beat out incumbent Jack Debnam for the chairman’s seat in the November election. “Most of the time we only have one chance to keep it clean, and in a lot of cases when it’s damaged, it’s damaged permanently and it’s irrevocable, and that’s the kind of activities we want to avoid.”
Over the past year, fracking has been at the forefront of discussion after the General Assembly in 2014 lifted a moratorium and paved the way for development rules and permitting in North Carolina. A laundry list of counties and municipalities rushed to pass resolutions opposing fracking in their jurisdictions, regardless of the fact that the state law explicitly states that local ordinances can’t restrict oil and gas development beyond what the state law spells out.
But that doesn’t make Jackson’s resolution a waste of time, said Commissioner Vicki Greene.
“Some of you may think this is a useless resolution. I strongly disagree,” Greene said at the Jan. 8 commissioners’ meeting. “I am part of not of just Jackson County but Western North Carolina, the state of North Carolina. I certainly don’t want fracking in any part of Western North Carolina and the state of North Carolina unless they are counties that want it, and I know that we are not among the counties considered likely places for fracking, but we need to make noise.”
In addition to Jackson County, five counties, 16 municipalities and the Eastern Band of Cherokee Indians have passed fracking resolutions so far, according to a list compiled by Frack Free N.C. The list includes Haywood and Swain counties as well as Franklin, Webster, Sylva and Forest Hills. Bryson City has also passed such a resolution.
“I have to believe that if all 100 of the counties were to pass resolutions, that the state, the General Assembly and the governor would have to sit up and take notice, so I’m gonna be working to see that other counties also have resolutions,” Dupree said.
This wasn’t the first time that the Jackson County Commissioners had talked about fracking. In October, the outgoing board passed a resolution to address the issue, though that resolution never used the words “fracking” or “hydraulic fracturing.” The resolution simply reaffirmed the county’s industrial development ordinance, which County Attorney Jay Coward said at the time would “effectively prohibit” fracking by restricting the area in which it could occur.
“This protects us,” then-Commissioner Doug Cody had said. “A resolution will not protect us. This ordinance will. This ordinance has been in place for 12 years.”
But McMahan felt the county should take a more direct stance on the issue.
“The resolution they adopted didn’t even use the term ‘fracking,’ so we really were unclear whether they were for it or against it,” he said. “I think this just eliminates any doubt in anyone’s mind how the current board feels about hydraulic fracturing.”
McMahan told those gathered at the Jan. 8 meeting that he intends to take Jackson County’s stance beyond mere words.
“We will be asking the planning board to immediately start review of our development ordinance and make suggested changes or develop a new ordinance that gives us the protection that we need in the event that fracking does come to Western North Carolina,” McMahan said.
The purpose would be to restrict the areas in which any oil and gas development could occur in Jackson County, and also perhaps to spell out requirements such as bonding and environmental mitigation. Such an action could have trouble holding up in court, though, due to a section of the state law that limits local governments’ ability to enact their own fracking regulations.
The section says that “any regulation that prohibits or has the effect of prohibiting” oil and gas activities beyond what’s outlined in the state law would be invalid.
“I’m very happy to hear that Jackson County’s looking hard at the issue and trying to make sure their residents are protected, but that’s something they’ll have to navigate,” said D.J. Gerken, managing attorney for the Southern Environmental Law Center’s Asheville office.
Depending on how it ends up being interpreted, the law could potentially apply to ordinances already on the books, even if they don’t specifically mention fracking.
“Essentially, they [the Legislature] set up the Mining and Energy Commission to decide which local ordinances have an unacceptable impact on fracking, so it’s not just fracking-specific ordinances,” Gerken said.
“This is very sweeping language, and I’m sure they are, but the folks in Jackson County are going to have to look hard at the language and think about what they can craft that survives this bill,” he added.
McMahan acknowledged that there are some legal questions yet to be answered but said the state has some of its own to answer. He’s waiting on the outcome of a lawsuit recently filed against the state by the Chatam County-based Haw River Assembly. The suit says that the Mining and Energy Commission’s formation is unconstitutional and that their proposed rules are therefore invalid (see story on page 8).
“I think the big question is whether or not what has been done thus far from the state perspective is unconstitutional or not,” he said.