Supreme Court set to hear landmark gas drilling case by Mannix Porterfield, September 25, 2012, The Register Herald
A landmark ruling is in the offing that could alter how gas drilling permits are issued in West Virginia, and the extent of rights that surface owners may exercise when their properties give way to such operations. Before the West Virginia Supreme Court today, arguments are docketed in a case brought by Matthew Hamblet, whose property in Doddridge County is accessible to a 1905 lease acquired by EQT, a gas company based in Pittsburgh, and formerly known as Equitable Resources Inc., until its name changed three years ago. Put simply, the bench must decide if a landowner is entitled to an administrative hearing on, and subsequent appeal of, any permits issued by the Department of Environmental Protection. While the Hamblet property has been subject to horizontal drilling, the court’s ultimate ruling would impact all gas operations, and not be limited to Marcellus shale. Existing law only allows a landowner to send in written comments to the DEP once notice is given of a company’s intention to explore the mineral rights of land in quest of natural gas. Julie Archer, a spokesperson for the West Virginia Surface Owners’ Rights Organization, said the DEP is allowed to approve how the well site and access roads are built, the type of erosion protections to be imposed, how the bore holes are cased and cemented to avert gas and pollution from seeping into ground water, how the pits are constructed and lined, and if and where waste water in the drilling pits is sprayed, or hauled off to disposal. “Considering the significant impacts to the land, we don’t think sending in a letter provides enough input from those who will have to contend with these well sites on their land for generations,” Archer said.
The notice Hamblet received indicated he had 15 days to comment, but since the new legislative act, landowners get a 30-day notification on most horizontal operations. Archer said Hamblet couldn’t respond since he was in and out of a hospital, but subsequently did so through an attorney, Cynthia Loomis of West Union. In his comments, the landowner said the road slopes more than 20 percent allowed by the old permit and led to so much erosion that a four-by-four vehicle couldn’t traverse it. But there was no response by DEP, which, in fact, waived the 20 percent limit on the slope of a road, Archer said. Hamblet then turned to the circuit court in his home county, appealing on grounds of an earlier Supreme Court decision that held a surface owner may appeal the state’s decision. But DEP and EQT then asked that Hamblet’s appeal be denied, advancing the issue to the state’s highest court. Archer said her organization became involved at that point, since the Marcellus shale law passed back in December in a special session clearly didn’t provide for “meaningful input” by surface owners or require mediation before a driller prepares to file for a permit. Now that the case is before the Supreme Court, the WV-SORO was allowed to intervene. “This case is about how wells are drilled, not whether the driller has the right to drill the well in the first place,” Archer said. “We are watching some other lawsuits about whether these huge new wells sites were contemplated by the parties in the old severance deeds and leases, and whether they can use one surface owner’s land for the disturbance required to drill horizontal wells into neighboring mineral tracts.”