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Clean Water for North Carolina sues Mining and Energy Commission

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Fracking opponents in North Carolina are suing state environmental officials over the sweeping powers of the Mining and Energy Commission.

The complaint was filed Friday in Wake County Superior Court by Clean Water for North Carolina, Anna Baucom, chairwoman of the Anson County Board of Commissioners; Creedmoor Mayor Darryl Moss and Chatham County resident Martha Girolami.

The state of North Carolina, the Mining and Energy Commission and the N.C. Department of Environment and Natural Resources are named as defendants.

The MEC, the majority of which is appointed by the Legislature, ruled that local governments cannot pass ordinances forbidding fracking within their own jurisdictions. The lawsuit contends that by giving the MEC the power to draft that law, the Legislature violated the state constitution. Only the judicial branch can forbid local governments from regulating fracking, the suit alleges.

If a judge decides the suit has merit, there could be a statewide injunction against fracking, reinstating at least a temporary moratorium on the drilling practice.

An injunction might come sooner than that. The environmentalist Haw River Assembly and Southern Environmental Law Center are expecting a decision this week in a separate legal challenge to the MEC's authority.

Several municipalities, including Raleigh, Durham and Chapel Hill, have passed resolutions opposing fracking. Other jurisdictions, such as the city of Creedmoor and Anson County, have approved ordinances banning the practice within their borders. However, state law—as recommended by the MEC—does not allow local ordinances to block drilling.

Hope Taylor, executive director of Clean Water for N.C., said many cities and counties have grown frustrated that state lawmakers have stripped them of any power over drilling.

"We've been told to accept drilling and fracking 650 feet from our homes, drinking water wells and schools, and 200 feet from our streams," Taylor said. "If local governments decide democratically to enact protections that their citizens need, the MEC shouldn't be able to toss them out."

In the suit, the plaintiffs said they had been "irreparably harmed" by lawmakers' decision to grant authority to the MEC.

"The more the MEC tries to shove something down my throat, the more questions I need to ask and the harder I push back," Baucom said. "That's the way our democracy, and especially our local governments, should work. These commissioners don't act reasonably and impartially, like judges. Only the courts should have the right to decide if the ordinance we passed to protect our county should stand."

MEC Chairman Vik Rao, who worked for Halliburton for nine years, said he doesn't understand why his panel was named as a defendant.

The General Assembly "gave us the authority to do this," said Rao. "Their beef is with the General Assembly, not with us."

Senate President Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, did not respond to requests Monday for comment.

The legal challenge follows a related suit filed last November by Gov. Pat McCrory and two of his predecessors, which argued that lawmakers overstepped their authority in giving themselves the power to appoint the majority of members on rule-making panels such as the MEC. Of the 15-member MEC, less than half were appointed by McCrory.

A three-judge panel of Superior Court judges sided with McCrory in March, although the state's Supreme Court is expected to hear an appeal of that decision this summer.

This article appeared in print with the headline "Fracking on trial"

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