Lawsuit challenges panel that made NC hydraulic fracturing rules

JONATHAN DREW, Associated Press

A lawsuit filed Monday by conservationists asks that rules on fracking in North Carolina be thrown out.

RALEIGH, N.C. (AP) — A lawsuit filed Monday by conservationists asks that rules on fracking in North Carolina be thrown out, arguing that the panel that developed them was formed in violation of the state Constitution.

Lawyers representing the Haw River Assembly argue that the state Legislature violated provisions separating the branches of government when it formed the Mining and Energy Commission in 2012, according to the lawsuit in Wake County Superior Court. The lawsuit says the Legislature usurped the authority of the executive branch by forming the commission as an administrative agency and then appointing eight of its 13 members. The governor appoints the rest.

The lawsuit asks the court to declare as unconstitutional the portion of the law forming the Mining and Energy Commission. It also asks the court to nullify the commission's actions, including fracking rules expected to be delivered this month to lawmakers who will have the final say on them. The measures cover issues including permitting, chemical disclosure, well shafts, water testing and buffer zones.

The lawsuit argues that the Republican-controlled General Assembly pushed the commission members it appointed to promote fracking and "get the rules passed as quickly as possible." It says the rules are inadequate to protect the state.

"We have a commission making important decisions about the future of North Carolina that is ultimately accountable to no one," said Derb Carter, an attorney for the Southern Environmental Law Center. The center filed the lawsuit on behalf of the Haw River Assembly.

Vikram Rao, chairman of the Mining and Energy Commission, said the panel members considered themselves accountable to the public — and not the governor or lawmakers — for their unpaid work. He said that the commission had to stay in communication with legislators as they developed rules, but their ultimate goal was to put safeguards in place.

"This Legislature has already decided that there is going to be fracking. Then they said: 'Write us rules to make it safe.' To eliminate the rules defies logic," Rao said in a phone interview.

Aside from Rao, the lawsuit names several other commission members as defendants, along with the state Department of Environment and Natural Resources and the state itself.

The set of about 120 rules developed by Rao's panel was approved last month by another state body, the Rules Review Commission, with the understanding that some technical corrections would be made. The Legislature is expected to receive them later this month.

Republican Gov. Pat McCrory signed a law last summer clearing the way for permits to be issued this year for fracking, which involves injecting water, sand and chemicals to break apart underground rocks so oil and gas can escape.

Scientists believe pockets of natural gas exist in layers of shale under Chatham, Lee and Moore counties southwest of Raleigh, but there are disputes about how much is there.

The Mining and Energy Commission received more than 220,000 public comments on the rules and considered them during revisions this fall. The panel has been debating and rewriting rule proposals since mid-2013.

It also held four public meetings around the state that drew passionate speeches from people who fear that toxic chemicals could leak from hydraulic fracturing wells.

Proponents say the extraction method can be done safely and that supplies of cheaper gas will help North Carolina manufacturers and increase jobs in the state.

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