Virginia Attorney General Mark R. Herring has assured local governments in Virginia that they have the authority to restrict or ban gas drilling within their jurisdictions.
The attorney general’s opinion, issued on May 8, reverses that of his predecessor, Kenneth Cuccinelli. It stopped short of commenting on any specific local regulations and left many to believe that the courts may ultimately decide local authority.
Environmental groups, including Friends of the Rappahannock and the Southern Environmental Law Center, praised the opinion. The groups are active on Virginia’s Northern Neck and Middle peninsulas, which lie atop the Taylorsville geologic formation that the U.S. Geological Survey has identified as likely to contain commercially viable amounts of natural gas.
“The attorney general’s opinion gives local governments assurance that they have the legal authority to enact zoning laws that put limits on drilling operations to protect their communities,” said Gregory Bupert, senior attorney at the SELC.
Texas-based Shore Exploration & Production Development Corp. has leased more than 90,000 acres in the region.
Industry representatives noted the discrepancy between Herring’s opinion and that of his predecessor. “The Virginia Oil and Gas Association disagrees with Attorney General Herring’s advisory opinion on fracking as both a matter of law and of public policy,” said association spokesperson Beth Stockner.
Mike Ward, executive director of the Virginia Petroleum Council, said, “it’s likely that the issue will ultimately be decided in the courts, since there are now two opinions, and they go in different directions.”
Herring’s opinion interprets existing Virginia law. “What the opinion did not do was analyze any proposed ordinance to see if it would conflict with the state regulations,” the SELC’s Bupert explained. “That’s the analysis that still needs to happen.”
The opinion has already influenced efforts by King George County to restrict drilling. The board of supervisors planned to limit fracking to 4 percent of county land to protect human health and safety as well as natural resources. The planning commission vetoed the proposed regulations, recommending that the opinion be part of the county’s considerations.
Lewis Lawrence, executive director of the Middle Peninsula Planning District Commission, said local governments need time to fully understand the opinion. “This opinion presents an interesting and important new public policy question — how to balance economic growth through the use of [the zoning ordinance] and environmental protection within the Virginia coastal zone.”
An advisory panel convened in 2014 to review Virginia’s oil and gas regulations recommended multiple changes. They include increasing groundwater monitoring; requiring more stringent pressure testing of production well casing; enclosing fracking waste pits; and including local governments in the pre-application review process.
Vermont was the first state, in 2012, to enact a fracking ban, followed by New York in 2014. Maryland’s House of Delegates passed a two-year ban on fracking in April 2015.
In Texas, Gov. Greg Abbott signed legislation on May 18 prohibiting local governments from banning hydraulic fracturing.