Commission hires Bastress for Marcellus shale issues
Pocahontas County Commissioners voted 2-1 to hire Morgantown attorney and WVU constitutional law professor Robert M. Bastress at the conclusion of a two-hour special meeting Tuesday morning.
Commissioner Martin Saffer said Bastress' role is "to assist the comission on actions and considerations of Marcellus shale drilling in Pocahontas County."
The opposing vote was cast by commissioner Jamie Walker, who said he felt there were other routes the commission could take that would be more cost-effective for the county.
The decision came after a 20-minute meeting of the commissioners and Bastress in executive session. Saffer cited "attorney client privilege" as the reason for the closed session. However, Bastress had not been hired by the commission prior to the closed meeting. When pressed further, Saffer cited section 6-9A-4.12 of West Virginia's open meetings law, which deals with matters which "by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act."
Prior to the executive session and hiring of Bastress, the commissioners and more than 40 Pocahontas County residents and landowners engaged in a question-and-answer session about the legal tools and strategies the county could use to enact protections from the potential hazards associated with drilling for natural gas in the Marcellus shale formation that underlies much of Pocahontas County. An outright ban on the drilling process known as hydraulic fracturing was also discussed.
Bastress recently helped Morgantown defend such a ban in court. In that case, the city council enacted a ban on drilling within the limits of Morgantown and one mile beyond. A drilling company that had already invested some $7 million in developing wells prior to the ban successfully challenged it in circuit court, where the judge ruled that state laws and regulations preempted the municipal government of Morgantown from imposing stricter regulations on the industry.
Bastress said current state laws concerning gas drilling are inadequate, allowing for no public comment period on drilling proposals, making no provisions for siting wells relative to other land uses, and providing no notice to municipal governments of drilling within their jurisdictions. West Virginia currently has skeleton crew of only 15 drilling inspectors to oversee operations statewide, Bastress added.
Morgantown's ordinance was enacted to protect the city from these shortcomings in state regulations, Bastress said. The attorney said he hoped Morgantown's council would vote to appeal the recent circuit court ruling.
While West Virginia's constitution gives very narrow authority to county and municipal governments, Bastress said these local bodies do have authority to regulate nuisance activity and activities that pose threats to water supplies or unique characteristics of a locality, such as Pocahontas County's tourism resources.
The karst, limestone geology of the area and the interconnectedness of much of Pocahontas County's surface and subsurface water present a special case that could justify more stringent local protections at the county level, according to Bastress.
Bastress noted that even when the process of extracting natural gas from the shale formation is "done right," some geologic studies show that pressures beneath the earth's surface can force chemical-laden fracturing fluids and trapped gasses through natural faults and fractures. These contaminants could eventually find their way toward drinking water aquifers over a period of years, said Bastress.
"The industry hasn't looked at this at all," he said.
Walker observed that the challenge posed by Pocahontas County's geology is one of the reasons large-scale Marcellus shale drilling hasn't made its way here yet.
"At this point, a cubic (foot) of gas is down so low, it's going to cost them more to drill for it in this county than it's worth," Walker said. "Due to the caves, and the karst and the hardness of our rock here in Pocahontas County, the cost effectiveness and the chance of them losing their (drilling) steel and their bits drilling the first thousand feet... the cost of that compared to about $4 a cubic for the material is not worth the risk of losing it."
Some in the room weren't so sure.
Vicki Martin, of Buckeye, noted that gas companies have the capability to extract the gas and store it until the price rises.
Others at the meeting worried that some landowners weren't fully aware of what they were signing when leasing their mineral rights in the past few years.
Sarah Riley, of Stamping Creek, said landowners and families, such as hers,who had to weigh the benefits and potential consequences of leasing gas rights in the Marcellus shale just a few years ago had very little information about the process available to them at the time.
"There are a lot of people who leased before we knew everything we know right now-that wish they could take it back," she said, "and they really wish there were more protections in place."
Walker suggested that instead of a total ban on drilling, those who have second thoughts about leasing their mineral rights could negotiate with the gas company that holds the lease to pay back the fees, signing bonuses and interest to get out of their leases.
Walker also suggested making a Marcellus shale drilling ban a ballot issue.
"If you're having mixed feelings of who's for it and who's against it, then everybody's got an equal opportunity at that point," he said.
Several people responded that there was still a lack of understanding in the community about the drilling methods used to tap the Marcellus shale and potential hazards. Others noted that the gas industry is already running well-funded ad campaigns touting the benefits of tapping into the new gas resource and could dominate the public discussion of a ballot issue.
A few in the room, including County Assessor Dolan Irvine, expressed concern that ban that restricts Marcellus shale gas leases would constitute a legal "taking" of a landowners property that would require compensation.
Bastress said there is case law that supports both sides of such an argument. How such a legal case would play out in Pocahontas County would depend on the individual case and the language of the ordinance in question, he said.
In addition to a takings argument, Bastress said a ban could also be attacked with regard to state preemption and contract laws. Nonetheless, Bastress believes a Pocahontas County ban would be defensible in court.
"To defend a ban in Pocahontas County, you'd have to identify why a ban is needed here," he said. "I don't think I could defend a ban in some other counties, because these wells can be done safely, and regulation is an easy alternative to a ban. I think Pocahontas County has some unique characteristics which might justify a total ban that other counties would not have."
Commission president David Fleming said other county commissions in West Virginia are waiting to see what actions other counties take.
"I see our role-our opportunity-not as a chance to catch spears, but as a chance to lead and set the example by which other counties can be inspired to stand up for their rights, one way or the other" said Fleming.
Reiterating an open letter he recently sent to his fellow commissioners around the state, Fleming said the decision of whether to drill or not to drill should rest at the county level.
With Bastress in its hire, the commission appears to be preparing itself to assert that right on behalf of Pocahontas County.