7:00 p.m.: This story has been updated with comments from Jim Womack, who did not respond earlier to questions.
With energy companies anxious to start drilling, the two-year fracking moratoriums in Lee and Chatham County are expected to be challenged at a meeting of the state’s Oil and Gas Commission this week. However, the legality of that meeting, scheduled for Wednesday in Sanford, is in question, as is the authority of the commission’s purported chairman, Jim Womack.
NC Department of Environment Quality Chief Deputy Secretary John Nicholson sent a letter to Womack on Friday challenging both the validity of the meeting and Womack’s dubious role as chairman and making clear that DEQ would not send staff to the meeting.
“First, it appears that you are not a current member of the commission,” Nicholson wrote, because Womack’s appointment occurred after the January 2016 state Supreme Court ruling in McCrory vs. Berger. In that decision, the court determined that both the Oil and Gas Commission and the state Coal Ash Commission were unconstitutional because the original laws establishing them reserved the majority of appointments to the legislature, rather than the governor.
The effective date of Womack’s appointment was June 1, 2016. A month later, the legislature created a new Oil and Gas Commission that did meet constitutional requirements. Of the nine members, five were appointed by Gov. McCrory and two each by the Senate and House leadership. However, Womack was not reappointed to the new, constitutional commission.
Womack said DEQ is incorrect “on both points.” He added that he was validly appointed by Sen. Phil Berger.
Nor is there evidence that the State Ethics Commission has approved of the members’ required Statement of Economic Interest reports. In fact, according to the ethics commission website, two of nine members haven’t submitted them at all: Stanford Baird and Charles Taylor. Randall Williams, the former deputy secretary of Health and Human Services, who was appointed by Gov. McCrory shortly before leaving office, had not submitted his, either. But Williams resigned from the commission two weeks ago, said his executive assistant at the Missouri state health department, where he has worked as director of Health and Senior Services for nearly six months.
Four of the five remaining annual SEI reports, including Womack’s, were late. Only Ronda Jones filed hers on time.
Womack said all commissioners will have their SEI reports on file by the Wednesday meeting. However, the ethics commission still must approve them.
These reports are required before the commission can call a quorum, pass rules or make other decisions.
“Together, these deficiencies affect the Commission’s ability to lawfully hold a meeting,” Nicholson went on. “As a result, DEQ and our staff cannot support its efforts under the current circumstances.”
Therese Vick, community organizer at the Blue Ridge Environmental Defense League, called Womack “a rogue ex-commissioner,” and said that his decision to meet and consider the fracking moratoriums “flies in the face of several lawsuits.”
Brooks Rainey Pearson is an attorney with the Southern Environmental Law Center, which has sued the state over the constitutionality of the fracking rules. She said “this seems to be a situation where a past commissioner, Jim Womack has scheduled the meeting without following proper protocol.” And with a court order still in place preventing the commission from accepting permit applications, she said, “this seems to be putting the cart before the horse.”
The agenda for the meeting, posted as required on the NC Secretary of State’s website, includes the following items: swearing in of commissioners, election of the chairman and vice chairman, set meeting date for public hearing and “discussion of complaints received from operators.”
The complaints in question appear to be based on an August 23 letter from Patterson Exploration Services of Sanford to DEQ Secretary Michael Regan. Orus Patterson, president of the “local geological service company and potential petroleum industry operator,” claims that the two-year fracking moratoriums passed by Lee and Chatham Counties usurp state authority and “interfere with my ability to complete proposed activities, including developmental work necessary to secure drilling permits in these areas.”
Womack said five separate operators, in addition to Patterson, have filed complaints with the commission.
While state law allows operators to file complaints about local ordinances to the commission, a court would make the final ruling on whether the ordinances could be enforced. The commission could not do that because by design it is not an impartial body; some seats are reserved for members with oil and gas interests or experience.
In July, Chatham County extended its fracking moratorium until August 2018. Lee County is expected to vote this month on whether to extend its past this December.
Local governments cannot pass permanent moratoriums, but state law does allow them to do so for limited amounts of time.
Within 60 days of the letter, Patterson wrote, he is legally entitled to a public hearing held by the Oil and Gas Commission.
DEQ’s registry of “landmen” — companies interested in energy exploration in the state — does not list Patterson Exploration or Orus Patterson.
Keely Wood, who owns a horse farm in Lee County, has long opposed fracking. She is among those property owners who could be subject to forced, or compulsory, pooling. Under this form of pooling, energy companies can force landowners to surrender their mineral rights and become party of a drilling tract.
Wood’s elderly neighbor had signed a 10-year lease allowing a company to conduct exploratory drilling on her land. The neighbor eventually was able to cancel that lease, Wood said, with legal help.
The fact that Lee County is considering extending its moratorium — and Patterson sent his letter within a month of Chatham County’s decision — plus Womack’s tactics, raise questions about the commission’s intentions. “The timing is strange,” Wood said. “Mr. Womack wants to drive this train.”