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Fracking fight ropes in national environmental organization

Jackson County Commissioners have voiced their opposition to fracking in the mountains loud and clear, and now they’ve signed an agreement making Jackson the first county in North Carolina to lean on the Natural Resources Defense Counsel for help writing rules to mitigate the industry’s impact in their jurisdiction.

“We are now one of their clients, and from that point we will move forward with looking at the ordinance, making suggested changes and they’ll help review that and [be] another set of eyes making sure that we are working things the appropriate way,” said Commission Chairman Brian McMahan.

The ordinance in question regulates industrial development such as asphalt plants and mining operations. In January, after the newly seated board of commissioners unanimously passed a resolution opposing fracking in the county, they followed up by directing the planning board to rewrite the industrial development ordinance to specifically address fracking.  

Not to ban it — just to restrict it. 

“It is not an attempt to outlaw it. I’m well aware what the legislation says,” McMahan said. “I don’t want people to get the wrong impression.”

The 2014 state law that lifted the moratorium on fracking — a form of fossil fuel extraction that opens up previously unrecoverable reserves but opponents decry as harmful to the environment and private property rights — includes a section invalidating local regulations that are more restrictive of oil and gas development than the state rules, which the Mining and Energy Commission finished writing in November. That’s why, though a good many counties and municipalities have passed resolutions expressing their disapproval of fracking in North Carolina, no one has passed any ordinances to restrict it locally since the 2014 Energy Modernization Act became law. 

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“Until you have the courts weigh in on it, it’s not entirely clear where the lines are going to be drawn,” explained Kate Sinding, director of NRDC’s Community Fracking Defense Project. 

While North Carolina’s law is still new and untested, the NRDC has followed or participated in the hashing out of similar laws in other states. Through the Fracking Defense Project, the NRDC aims to bring its expertise as a national environmental advocacy organization to communities like Jackson County that are navigating the waters for the first time. 

“We do believe that notwithstanding the restrictive nature of that language [in the state law] that there are things that local governments can do to protect themselves against potential impacts of oil and gas development,” Sinding said. 

Those parameters will largely depend on how the courts wind up interpreting the law in the broader context of the state’s constitution and judicial precedents, she said. For example, the New York Legislature enacted a law stipulating that all local ordinances related to oil and gas development be superseded by the state rules, but the courts upheld local zoning rules restricting where it occurred. 

“Because of a combination of the way that similar statutory language has been interpreted in other counties and the state’s very strong home rule tradition, the courts here actually interpreted that as only limiting the operational aspect of the industry and didn’t extend it to traditional zoning and land use,” she said. 

The contract between the county and the NRDC states that the nonprofit will give free legal advice to Jackson County in writing an industrial development ordinance that restricts where oil and gas development could occur but will also jive with the state law. 

However, the contract also says that the county will shoulder the costs of any legal challenge on its own. 

That doesn’t mean the NRDC wouldn’t help, should such a situation arise, Sinding said. The organization has helped other municipalities whose ordinances were challenged in court, but there hasn’t yet been a need to represent any of the local governments whose ordinances the NRDC helped write. 

McMahan doesn’t see a legal challenge in Jackson County’s future. 

“I don’t really see how it could go to court,” he said. “Obviously the state’s made it very clear in the legislation that was passed that we can’t outlaw fracking, and that’s not what our intentions are. But there are things we think we can do within the scope of the legislation that has been adopted to make sure that if it were to happen here, it would be done in a way that would have the best possible outcome on the community.”

Though Anson County and the towns of Creedmoor and Bakersville passed fracking bans in the years preceding the Energy Modernization Act, Jackson is possibly the first municipal government to try writing an ordinance that will coexist with the state law. To McMahan, Jackson County’s solitary stance is cause for pride, not intimidation. 

“I’m not one to sit around and wait to have to react,” McMahan said. “I’d rather move forward now. If we’re one of the first to do so, that shows we have our priorities in order and are thinking about the future.”

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