NC fracking commission plans illegal meeting to hear moratorium challenges, state says

Workers tend to a well head during a hydraulic fracturing operation at an Encana Oil & Gas (USA) gas well outside Rifle, in western Colorado.
Workers tend to a well head during a hydraulic fracturing operation at an Encana Oil & Gas (USA) gas well outside Rifle, in western Colorado. AP

The state’s Oil & Gas Commission appears ready to put fracking back on the political radar, in defiance of a warning from Gov. Roy Cooper’s administration that the commission lacks the legal authority to conduct state business.

Jim Womack, appointed to the Oil & Gas Commission by state Sen. Phil Berger, said state law requires the Oil & Gas Commission to meet at least once a quarter. Womack noted that the matter has gained urgency since the board received five petitions requesting public hearings to challenge a pair of fracking moratoriums adopted by Chatham and Lee counties.

Womack, a vocal advocate of shale gas exploration, has set up a meeting on Wednesday in Lee County to pick a chairman, swear in the members and set a hearing schedule and discuss complaints. No action is expected at the first meeting but the commission could ultimately decide the local moratoriums are illegal – a decision that would surely send the matter to court.

The N.C. Department of Environmental Quality contends Womack is not even a member of the commission he purports to be organizing. In a letter to Womack sent Friday, the agency’s chief deputy secretary, John Nicholson, also noted that other Oil & Gas nominees have not been cleared to serve by the State Board of Elections and Ethics Enforcement. The ethics board is attempting to get all conflict of interest disclosures reviewed ahead of Wednesday’s meeting, said spokesman Patrick Gannon.

Womack, a former Lee County Commissioner who is now chairman of the Lee County Republican Party, is prepared to proceed with the meeting without any legal or staff support from the state Department of Environmental Quality.

Womack has published a meeting notice online, arranged for the meeting to be recorded, and lined up a public official to swear in the Oil & Gas commissioners at the Lee County government complex in Sanford.

“DEQ is grasping at straws in an attempt to continue denying the Oil & Gas Commission the ability to properly discharge its duties,” Womack said by email. “This is reckless, unprofessional behavior and a breach of public trust.”

Everyone agrees on one point: If the Oil & Gas Commission holds meetings, the state government’s dispute with its own commission is headed for a showdown in court. As a state policy, the debate over fracking comes down to the environmental risks of drilling for natural gas near aquifers, versus the economic benefits of tapping a domestic energy resource.

North Carolina’s experiment with shale gas exploration has not produced a single well or even a permit application, but the issue has never lacked for political theater.

“You’ve got a rogue ex-member improperly calling a meeting to hear a petition that was not lawfully filed,” said Brooks Rainey Pearson, an attorney with the Southern Environmental Law Center. “I will be there in a front-row seat to see whatever happens.”

The function of the Oil & Gas Commission is to review safety standards for fracking, which involves hydraulic fracturing and horizontal drilling, as well as review permits and citizen complaints. The Oil & Gas Commission’s nine slots were all filled last year by Republican Gov. Pat McCrory and Republican legislative leaders, in some cases just two days before McCrory left office. Two of the nine commissioners have since resigned, leaving two vacancies to be filled by Gov. Cooper and by House Speaker Tim Moore.

Womack had previously served on the Mining & Energy Commission, which spent two years creating 100-plus safety standards for fracking and a permit application process. The Mining & Energy Commission was then replaced by the Oil & Gas Commission, which was deemed unconstitutional by the N.C. Supreme Court in 2015. It was subsequently reconstituted by the legislature in July 2016 to give the governor the majority of appointments. However, Nicholson informed Womack he is not a member of the new commission because Berger did not reappoint him after the panel was reconfigured, an interpretation that Womack and the senator reject.

Of the five petitions Womack said he has received to challenge local moratoriums, one is dated Aug. 23 from Patterson Exploration Services, a geological service company in Sanford. The company alleges the moratoriums interfere with its ability to secure a drilling permit. Patterson Exploration also sent a complaint to DEQ Secretary Michael Regan.

“I’ve had loss of income because of this,” said company owner O.F. “Russ” Patterson III. “It keeps my clients from coming here.”

Lee County Manager John Crumpton said the majority of Lee County Commissioners are opposed to fracking and stand by their moratorium. Glenn Dunn, a lawyer in private practice who advised Chatham County on its moratorium, said he doesn’t see how the Oil & Gas Commission can carry out its functions with so much legal uncertainty.

Commissioner Charles Taylor, a McCrory appointee, said he hopes Wednesday’s meeting will clarify the situation. Commissioner Ronda Jones, another McCrory appointee, said she struggled with her decision and decided on Monday not to attend Wednesday’s meeting, given the uncertain legal status of the commission.

Victor Gaglio, another McCrory appointee, said Monday he does plan to attend.

Others could not be reached or did not return calls.

“We do have some sort of obligation to meet,” said Gaglio, the senior vice president of operations for the natural gas business unit of Duke Energy. “Some decisions are going to have to be made, whether this is a standing committee or how we’re going to fulfill our obligations.”

John Murawski: 919-829-8932, @johnmurawski