Could separation of powers lawsuit sink NC fracking?

With North Carolina expected to begin issuing fracking permits as early as this spring, a conservation group and a landowner have filed a lawsuit in state court challenging the constitutionality of the commission that regulates the controversial gas drilling technique.

The state legislature created the Mining and Energy Commission (MEC) in 2012 as an administrative agency in the Department of Environment and Natural Resources but appointed the majority of MEC members. The suit claims this violates the state constitution, which says the "legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other."

The plaintiffs are the Haw River Assembly, a nonprofit citizens' group based in Chatham County, and Keely Wood Puricz, whose property sits next to 100-acre tract leased for gas drilling in neighboring Lee County. The nonprofit Southern Environmental Law Center filed the suit on their behalf this week in Wake County Superior Court. It seeks to void the commission and its proposed rules.

"This attempt by the North Carolina legislature to expand its legislative power and usurp executive authority violates the separation of powers firmly established in our state constitution," said Derb Carter, senior attorney and director of the SELC's North Carolina offices. "As a result, we have a commission making important decisions about the future of North Carolina that is ultimately accountable to no one."

This is not the first lawsuit to target such North Carolina commissions for violating the separations of power provision: In November, Gov. Pat McCrory joined with former governors Jim Martin (R) and Jim Hunt (D) to file a lawsuit over the constitutionality not only of the MEC but also of the Coal Ash Management Commission; the Oil and Gas Commission, which will oversee fracking once it gets underway; and a proposed Medicaid board.

Named as defendants in that suit, also filed in Wake County Superior Court, were six members of the coal ash commission appointed by the legislature; state Senate President Pro Tem Phil Berger; and former state House Speaker Thom Tillis, who was sworn into the U.S. Senate this week.

"These commissions make government less accountable to the will of the people," McCrory said at the time. "Citizens and voters must be able to distinguish which branch of government is responsible for making the laws and which branch is responsible for carrying out the laws and operating state government."

The State Board of Education is also suing the state and the Rules Review Commission over similar concerns.

But the separation of powers lawsuit is not the only problem facing pro-fracking forces in North Carolina: Questions are being raised about the basic economic viability of gas drilling in the state, which is believed to have only limited shale gas deposits.

Jim Womack, a member and former chair of the MEC, last month told the Triangle Business Journal that economic factors were stacked against gas drilling in North Carolina:

"I would say there's a bit of trepidation right now with the way the international economic landscape is with oil and gas," he says, pointing to OPEC "flooding the world markets" with crude oil. "Immature plains, like what we have in North Carolina, are really not being seriously looked at."

An independent energy developer active in North Carolina recently told The News & Observer of Raleigh that getting the industry to look at operating in the state was like "pulling teeth."

Among the factors discouraging drillers is the state's proposed $1 million environmental accident bond -- the highest in the country. Texas, for example, requires a bond of only $250,000.

Elaine Chiosso, the Haw Riverkeeper and executive director of the Haw River Assembly, said that if North Carolina is going to allow fracking, it needs to put strong regulations to protect communities and water supplies.

"That can only happen through an accountable and representative agency, and the citizens of North Carolina deserve no less," she said.