Surface Owners Plan to Turn to Courts Over Marcellus Drilling
Charleston Gazette
9 July 2011
By Alison Knezevich
CHARLESTON, W.Va. -- Frustrated with state lawmakers' failure to
approve regulations on Marcellus Shale development, the West Virginia
Surface Owners' Rights Organization says it plans to shift its focus
from the Statehouse to the courthouse.
Legislators are coming to Charleston this week for their interim
monthly meetings. Part of the schedule will include the first two
meetings of a new committee focused on Marcellus issues. Dave McMahon
of the surface owners group said his organization wants to participate
in the discussion, but he isn't hopeful.
"Four years at the Legislature has taught us not to expect much," said
McMahon, a lawyer. "So we are going to turn to the courts."
Since 2008, McMahon's group has unsuccessfully pushed lawmakers to pass
a surface owners' bill of rights. Earlier this year, the Legislature
failed to work out new regulations for Marcellus drilling. The Senate
approved a measure (SB424), but the House -- which backs stronger
protections for the environment and surface owners -- never voted on
the bill.
Now, with Marcellus development growing, McMahon says, it's time for
his group to broaden its tactics.
McMahon already has filed one lawsuit on behalf of a Marion County man
who says two companies don't have a right to put wells on his property
to get to the gas on a neighbor's land.
Another possible lawsuit would seek to give surface owners the right to
a hearing on well permit applications, McMahon said.
A third potential lawsuit would focus on abandoned wells. There are
5,000 in West Virginia, said McMahon, who contends that the state
should not issue new permits until it plugs those wells.
In both cases, the state Department of Environmental Protection would
be the likely defendant.
The surface owners group might work with nonprofit law firms and
environmental groups to file the lawsuits, McMahon said.
He said some lawmakers have been open to listening to the concerns of
surface owners, but in general, citizens have a hard time getting heard.
"The usual lobbyist ratio, if you combine surface owners and
environmental people, [compared] to corporate lobbyists, is 17 to 3,"
he said. "And if you count donations to campaigns, who knows?"
Legislative leaders formed the new Marcellus committee to work out a
compromise between the House of Delegates and state Senate, with hopes
of drafting a bill that could be approved during a special session
later this summer or fall.
McMahon said he also is worried because the co-chairman of the
Marcellus committee is Sen. Doug Facemire, whom he calls the Senate's
biggest advocate of the gas industry.
Facemire calls himself "an advocate for economic development."
"And I do believe that oil and gas is a vehicle that can help take this
state to a new level through the economic development of it," the
Braxton County Democrat said. "I thank God every night for our coal and
gas and timber, that he blessed our state. . . . People have to
have jobs."
Facemire said the Senate would use SB424 as a framework for next week's
meetings. The legislation is a scaled-back version of an earlier
measure, but Facemire said it still addresses issues such as
notification to landowners, illegal dumping of fracking water and
damage to state roads.
"We really tried to address a lot of the concerns that the people
have," he said.
"You think the industry was tickled about a $100,000 fine?" he added,
referring to penalties for companies that dump fracking water.
Corky DeMarco, head of the West Virginia Oil and Natural Gas
Association, said he couldn't respond to surface owners' legal plans
because he doesn't know the details, but he said that, as lawmakers try
again on the legislation, "we need certainty in this industry."
Because of the lack of state regulations, the city of Morgantown last
month banned fracking.
"Are we going to be in a situation where every county has laws and
every city in the county has laws?" DeMarco said. "That's not
certainty. And people are not going to invest under those conditions."
Delegate Tim Manchin, D-Marion, will serve as co-chairman of the
committee. Manchin said the Senate bill is "not a bad framework from
which to start," even though it's not as strong as what many delegates
want.
"I think we're going to do something for surface owners," Manchin said.
"Will it be as much as they would like? Will it go as far as the House
would like to go? We might not get there."
Senate President Earl Ray Tomblin, who is acting as governor, has said
a special session on Marcellus issues could come by August.
Manchin said he thinks September might be more realistic.
"It's hard to get consensus," he said, "but I think we have probably
the best chance that I've seen since I've been in the Legislature to
make some changes, to make some progress."
The first meeting this week is set for 6 p.m. Tuesday, and the second
at noon Wednesday. Both are scheduled for the Senate Judiciary room.
The initial meeting will be an informational session featuring guest
speakers.
A new group, called West Virginians for a Moratorium on Marcellus,
plans a 10 a.m. rally at the Capitol on Monday.
Reach Alison Knezevich at alis...@wvgazette.com or 304-348-1240.