Greens Seek to Rein in N.C. Commission

(CN) - The North Carolina Mining and Energy Commission is an unconstitutional body that should not have the right overturn local government ordinances designed to protect communities from the impacts of hydraulic fracturing, greens claim in lawsuit.

In a complaint filed in the Wake County, N.C. Superior Court, Clean Water for North Carolina, a nonprofit environmental group, and a trio individual plaintiffs, argue the commission should not have been granted the authority to rule on ordinances by the General Assembly because it violates the "separation of powers" of the executive and judicial branches of state government and is the result of action by the legislature.

The individual plaintiffs - Martha Girolami, Anna Baucom, and Darryl Moss - are residents of three counties (Chatham, Anson and Granville) that lie over possible gas-containing shale formations in the Deep River Basin.

"Local governments are the first line of defense to protect our citizens and resources from potential harms of any kind, and especially an industry that could provide only a few temporary jobs, and profits only to a few landowners and contractors," said Moss, currently serving as Mayor of Creedmoor, a city that adopted a fracking ordinance in 2011.

"We're particularly concerned about our limited and vulnerable water supply, which would be threatened by this water-hogging industry which has developed no safe method of storing or treating huge volumes of waste," Moss added.

Since the Mining and Energy Commission's creation, the state General Assembly has granted the it additional powers and duties, including interpreting North Carolina statutes to determine whether local ordinances are preempted by state law.

"This statutory provision exceeds a permissible grant of quasi-judicial powers to an administrative agency, and transforms the MEC into a judicial body within the executive branch," the complaint says. "Section 113-415.1 contravenes the separation of powers doctrine and constitutes an unconstitutional legislative delegation of judicial authority to an administrative agency."

The plaintiffs seek a declaratory judgment that NC General Statutes Section 113-415.1 is unconstitutional and void as to violating the fundamental principles of separation of powers.

After years of working closely with other with local Chatham County citizens to implement protections for her county, Girolami said, "There are good reasons for effective statewide regulations, but when that regulatory process is used as a tool to protect industry, rather than people and the environment, people will turn to the officials they connect with most directly and hold most directly accountable-their local governments.

"I can't allow my taxes to be used against me and my neighbors to support a Commission that creates a weak statewide system of regulations and then allows that same pseudo-regulatory body to decide whether our local regulations will be allowed to stand," Girolami said.

Baucom, who serves as Chairman of the Anson County Board of Commissioners, said she has been concerned about fracking for years.

In 2013, the Anson Board voted unanimously to enact a moratorium on fracking to give them time to develop detailed protections for their county. Baucom says she experienced pressure from an MEC Commissioner who didn't want that ordinance to pass.

"The more the MEC tries to shove something down my throat, the more questions I need to ask and the harder I push back ... 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," Baucom said.

Other defendants in the suit are the North Carolina Department of Environment and Natural Resources and the State of North Carolina.

The plaintiffs are represented by James Longest and Shannon Arata of Durham, N.C.

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