Fracking and property rights won't be easily resolved

By Scott Mooneyham | Jan 23, 2013

RALEIGH -- Despite the political rhetoric and public angst, it is far from certain that there will ever be a thriving natural gas drilling industry in North Carolina.

Yes, state legislators last year created a legal path for hydraulic fracture, or fracking, to begin in the state within a few years. They formed a commission to establish regulations for the industry. They stand poised, within the next couple of years, to give more green lights to the industry.

Still, unless the economics are right, the relatively small shale formations running through Piedmont counties that hold natural gas may never lead to substantial drilling. As the energy landscape in this country and the world continues changing, the economics may never be right.

Let's assume, though, that five years hence, the economic are right, that some portion of the hydraulic fracturing industry that now inhabits Pennsylvania has rolled on into this state.

Should that happen, some public opposition based on environmental concerns will certainly continue. It has in other states. There is no reason to believe that it won't here.

The practice -- pumping water, sand and chemicals into underground rock formations at high pressure to release embedded natural gas -- is always going to generate some controversy.

But if the industry acts responsibly, the state regulates responsibly and no widespread contamination of water supplies occurs, worries by the wider public may ease.

What might not go away are controversies involving property rights and property uses.

I suspect that Jim Womack understands that likelihood.

Womack, a Lee County commissioner and self-described "pro-energy, pro-drilling, pro-business advocate," is the chairman of the state Mining and Energy Commission, the group created to oversee regulation of the industry.

Last week, Womack was attending a study group of the commission that, among other things, is examining where the lines of regulatory authority should fall between local and state government.

An early version of the legislation that created the commission and will ultimately allow the drilling would have usurped any local authority. The law passed pretty much leaves the question unsettled.

It tells the commission to make recommendations that "allow for reasonable local regulation" but do not have the effect of prohibiting drilling.

So, does that mean cities can never prohibit it any place, with zoning ordinances designed to protect adjoining property owners? And is this drilling a compatible use inside any municipality's borders, with their commercial and residential land uses?

I asked Womack questions along those lines last week. He essentially punted on the questions, noting that state legislators will ultimately have to resolve the issues.

I don't blame him for his artful dance around the subject. He is a smart guy and knows that these questions about land use and property rights will not be easily answered.

City and county government, though, have been the governmental entities historically entrusted to settle most land use concerns.

Shifting that responsibility to Raleigh makes about as much sense as letting local governments build interstate highways.


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