Fracking protections a key consideration in ordinance revision
When the state opened the doors for hydraulic fracturing — called “fracking” — in 2014, a flood of public opinion from the mountains told Raleigh that drilling would not be welcome in the western part of the state.
And while the best guesses of science suggest that there’s little to no gas worth harvesting under the mountains, Jackson County is still moving ahead to build some protections against fracking into its code of ordinances.
The question is, how? The legislation that set up the framework to allow fracking in North Carolina made it clear that any local rules contradicting the state regulations would be invalid, so the trick is writing language into the ordinance that protects Jackson County against the purported ill effects of fracking while still holding up in court.
“If you ever had an applicant come in and say, ‘These development rules are too stringent, I can’t actually perform the mining operation,’ they can go to the state and say, ‘These are too restrictive,’ and the state can say, ‘I agree, you don’t have to follow them,’” said Planning Director Michael Poston.
When the planning board first began looking at the Industrial Planning Ordinance in April 2015, they immediately added fracking under the definition of mining, subjecting the industry to the same regulations as other forms of mining.
Poston advised the planning board that the edit was probably sufficient protection, or at least as much protection as the state law allows.
“After the state came down with their ruling, a lot of folks said, ‘We put a lot of time and energy into developing standards that may not even apply in the end. How much of the board’s time do we want to take up developing these?’” Poston said.
Several of the board members disagreed with that conclusion.
“When we were discussing this earlier, the old board, the commissioners wanted us to put a section in there about fracking,” said Burt Kornegay, who’s been on the board since March 2014. “They wanted it specifically in there.”
Last year, commissioners entered into a contract with the Natural Resources Defense Council, which agreed to give the county free legal advice to write an industrial development ordinance that would protect against the impacts of fracking while also surviving legal challenge, pointed out member Ken Brown. Shouldn’t the planning board look at pulling some of those experts in?
“I personally wouldn’t mind hearing from an outside group,” said member Kirk Stephens.
County Commission Chairman Brian McMahan encouraged that perspective when contacted for a follow-up interview. He asked Poston to research the legalities of additional regulations, especially the possibility of requiring baseline testing before development begins. If required, the pre-drilling testing would provide a basis for comparison later to determine whether potential claims of environmental contamination had merit. When baseline testing does not occur, the energy companies can simply say that there’s no proof that contamination wasn’t already present before their operations began. However, research will be required to see whether the county has authority to make those kinds of rules or whether that’s the realm of the state.
“We wanted them (the planning board) to make sure that they focused on environmental impacts for polluting industries,” McMahan said.
The goal isn’t to pass a rule saying fracking isn’t allowed — due to state law, such an ordinance wouldn’t hold water for a moment — but rather to add requirements for developers that will better protect residents and the environment.
“Its not denying or allowing anything to happen,” McMahan said of his hopes for the ordinance. “It would be, are these requirements that we can tack on in our industrial development ordinance?”