Not interested in fracking your land? It may not be up to you.
That was the consensus last week of a state study group on "forced pooling," a controversial provision that allows a drilling company to force nonconsenting landowners into fracking operations if owners of neighboring tracts want to drill.
Members of the N.C. Mining and Energy Commission's forced pooling study group recommended at least 90 percent of the acreage in a drilling area be leased before officials consider forcing a landowner into drilling.
Study group chairman Ray Covington, a landowner in the prospective drilling hub of Lee County, described the group's recommendation as balancing landowner protections against the needs of drilling companies in considering whether drilling is worthwhile in an area. For the study, "we have taken the best of 39 states that are actively drilling," Covington said.
The study group's recommendation will be forwarded to the N.C. Department of Environment and Natural Resources, which is expected to deliver a report on proposed fracking regulations to state lawmakers in October, Covington said.
The study included four voting members of the Mining and Energy Commission as well as advisers from agencies and nonprofits such as the N.C. Bankers Association, the N.C. Conservation Network and the N.C. Real Estate Commission.
Grady McCallie, a representative of the N.C. Conservation Network, panned the recommendation as "bad public policy and constitutionally questionable."
"That's not how property rights work in this country," said McCallie.
In fracking states, gas operations are broken into drilling units containing hundreds of acres with multiple parcels and landowners, a design intended to encourage centralized drilling.
Without forced pooling, fracking backers say nonconsenting landowners may unilaterally block drilling operations in their area by refusing to sign a gas lease.
Opponents counter that the practice infringes on property rights, allowing for-profit companies to force landowners into drilling against their will.
Different states offer different thresholds for considering forced pooling, the study group's report said. In Arkansas, the threshold is as low as 1 percent of the acreage in a drilling unit. In Kentucky, it's 51 percent; in Virginia, it's 25 percent. Other states, such as Pennsylvania, do not allow forced pooling.
Covington said the group's 90 percent recommendation lines up with Ohio. He added that a little-known state law already allows forced pooling in the state, making it up to his study group to recommend how it should be employed.
Study group member Jim Womack, a Lee County commissioner and chairman of the state's Mining and Energy Commission, called it "abhorrent" that a private company may force its will onto a landowner, but he said it is necessary.
"If you want to encourage economic development, you don't do it by making it really easy to shut it down," he said.
Study group adviser James Robinson, a policy analyst for the nonprofit Rural Advancement Foundation International (RAFI-USA), backed McCallie's assertions, calling on members to support a more stringent 95 percent threshold.
RAFI-USA says the 90 percent provision may force more than half of the landowners in a typical 640-acre drilling unit in Lee County to frack without their consent.
Meanwhile, study group members said that state regulators will still have the discretion to block forced pooling even if the 90 percent threshold is met.
This article appeared in print with the headline "Dirty pooling."