Court Temporarily Enjoins State Commission from Accepting, Processing Fracking Permits

Published Thursday, May 21, 2015 at 2:07 pm

*Release from Southern Environmental Law Center

Wake County Superior Court today stayed a constitutional challenge to the state’s Mining and Energy Commission by a local conservation group and landowner pending a decision in the appeal of McCrory v. Berger or until further order of the court. During the stay, the MEC is enjoined from accepting or processing permit applications for drilling units and from creating any drilling units.  This effectively reinstates the moratorium on fracking in North Carolina.

The lawsuit against the MEC charges that the commission violates the separation of powers provision of the North Carolina Constitution because a majority of the commission’s members are political appointees by the legislature, and that the fracking rules, created by an unconstitutional commission, are therefore null and void.

“Today’s decision stopped any immediate harm to North Carolina residents from a commission formed by the state legislature in violation of the separation of powers firmly established in our state constitution pending further court deliberations,” said John Suttles, the senior attorney at the Southern Environmental Law Center who represented the Haw River Assembly and Lee County property owner Keely Wood Puricz before the court.

Today’s court order does not otherwise enjoin the MEC or the state from conducting other lawful activity.

The North Carolina General Assembly established the MEC in 2012 as an administrative agency in the Department of Environment and Natural Resources, which is part of the executive branch, specifying that its members would be appointed by the state legislature and the governor. Currently, the governor appoints five members to the MEC and the legislature appoints eight members.  The separation of powers provision of the North Carolina Constitution provides that the legislative, executive, and judicial powers of the state government shall be forever separate and distinct from each other.

The Mining and Energy Commission has control over key issues in North Carolina and adopted draft regulations that govern hydraulic fracturing or fracking for gas extraction despite widespread concern among citizens over opening up North Carolina to fracking.

Keely Wood Puricz is a landowner in Lee County, NC, a county expected to be directly impacted by fracking.  Her property is next to a one hundred acre tract of land leased for gas extraction.

“The citizens of North Carolina deserve to have a lawful, accountable and representative agency to put in place strong protections that safeguard our communities and water supplies from the risks and harms of fracking,” said Elaine Chiosso, Haw Riverkeeper and executive director of the Haw River Assembly, which has members who live directly above areas of shale deposits that could be subject to gas extraction by hydraulic fracturing.

In recent years, the General Assembly has enacted laws to require a majority of legislative appointments to several state executive agencies including the MEC, Oil and Gas Commission, North Carolina Mining Commission, and Coal Ash Commission.  On November 13, 2014, Governor McCrory, joined by former Governors Hunt and Martin, filed a lawsuit challenging the legislative appointments to the Coal Ash Commission, Oil and Gas Commission, and Mining Commission as an unconstitutional violation of separation of powers in the State Constitution.

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The Haw River Assembly is a nonprofit organization founded in 1982 with approximately 1000 members who live and work mostly in the region around the Haw River and Jordan Lake.  The mission of the Assembly is to advocate for clean water, promote environmental education, foster conservation, and prevent pollution within the Haw River watershed.  The Assembly is a member of Waterkeeper Alliance

The Southern Environmental Law Center is a regional nonprofit using the power of the law to protect the health and environment of the Southeast (Virginia, Tennessee, North and South Carolina, Georgia, and Alabama). Founded in 1986, SELC’s team of over 60 legal experts represent more than 100 partner groups on issues of climate change and energy, air and water quality, forests, the coast and wetlands, transportation, and land use.

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