North Carolina countered county fracking regulations with Senate Bill 119 on October 1st. Senate Bill 119 comes in at the tail of the Texas legislature’s H.B. 40, discussed earlier this week in this blog. Both designate state control versus local control over fracking regulations.
Local counties, such as Chatham and Stokes, have passed hydraulic fracking moratoriums since mid-August, and Lee county is currently considering passing its own. Stokes County’s moratorium lasts for three years and prevents the issuance of zoning permits connected to oil-and-gas development. Chatham County’s moratorium lasts for two years and halts all hydraulic fracking. These moratoriums are used to stop fracking activities while local counties consider the impact on social and environmental factors before the county determines if an ordinance needs to be created. For more on moratoriums and local ordinances, please click here.
Senate Bill 119 is positioned to preempt those moratoriums. Senate Bill 119 strengthens a prior ban that prohibited local municipalities from directly or indirectly regulating hydraulic fracking. Senate Bill 119 clarifies that any local ordinance that “regulate[s] or [has] the effect of regulating” the exploration of oil and gas “are invalidated and unenforceable.” Senate Bill 119 promotes a uniform regulatory system that would provide a consistent message to guide oil-and-gas companies.
Local governments in North Carolina question the applicability of the bill on moratoriums. The bill focuses on the enforceability of regulations. It does not specifically address moratoriums.
“I’d be happy to put [the issue] before a judge if [lawmakers] want to challenge our moratorium,” stated Chatham County Commission Chairman, Jim Crawford.
Crawford distinguished the moratorium, noting that it is a “time out,” not a regulation.
Still, even if the moratorium is not rendered moot, the bill makes it simpler to invalidate the moratorium.
“Previously, the commission would have to find that one of the purposes of the moratorium . . . was to prohibit or have the effect of prohibiting oil and gas exploration, development or production,” stated University of North Carolina School of Government professor, Richard Whisnant. “Now, it just has to find that the local action is intended to ‘regulate’ oil and gas” to invalidate the moratorium.
Litigation to determine whether Senate Bill 119 invalidates local counties’ moratoriums may be triggered in the future when an energy company is permitted by the state to drill in an area where a moratorium is currently in place. Some have conceded to the bill’s applicability.
“They’ve made it perfectly clear to us,” Lee County Manager, John Crumpton, stated. “If there were any loopholes . . . [they were] taken care of . . . .”
A copy of Senate Bill 119 can be found here.