D’oh! Fracking Gets the Green Light?

Photo by: Michael Hedgepeth

On July 3, 2012, the North Carolina legislature adjourned sine die – with no appointed date for resumption – bringing the two-year legislative session to an end.  State lawmakers passed significant legislation affecting everything from municipal annexations to allowing table games at Harrah’s Casino, operated by the Eastern Band of Cherokee Indians.  However, it was the events of the night before, Monday, July 2, 2012, that captured the attention of internet junkies everywhere and even received national media coverage.

The air was thick and the stakes were high as state lawmakers undertook a marathon session late Monday night.  The calendar included three controversial bills up for reconsideration in hopes of overriding Democratic Governor Beverly Perdue’s veto.  Indeed, it was a record-setting night with all three bills being passed, notwithstanding the objections of the Governor.  But, it was the passage of one bill, arguably the most controversial bill this session, that has commentators around the nation asking, “Are you fracking serious?”

Senate Bill 820 “Clean Energy and Economic Security Act”

Senate Bill 820 is the highly controversial bill that will open the door for shale gas exploration in North Carolina using horizontal drilling and hydrofracturing technology, better known as “fracking.”  So, one might ask, what is so controversial about that?  Well, besides the offensive nature of the word itself, lawmakers have spent hours on the Senate and House floors lamenting the unknown and ominous risks associated with the fracking process.  However, today it is not only the unknown risks that are drawing the attention of media outlets nationwide, but also the exceptional circumstances surrounding the passage of the bill.

Allow me to address the latter first.  In order to override a gubernatorial veto, a vote of three-fifths of the members of the legislature present is needed.  The GOP holds a veto-proof 31 to 19 majority in the state Senate, but only a 68 to 52 majority in the state House.  Falling short of the three-fifths majority needed in the House, Republicans would need at least four Democrats to vote against their Governor.  Moreover, it was generally presumed that two Republican members were going to vote against the bill, meaning the GOP would need at least six Democrats to cross the aisle in order to legalize fracking.  And, wouldn’t you know it, that’s exactly what fracking happened . . . sort of.

You see, casting a vote in the North Carolina legislature is actually much more difficult than it would appear at first glance.  There is this little green button lawmakers press to vote “yes,” and then, just mere inches away, a little red button to vote “no.”  Monday night, a mistake of Homeric proportions – Homer J. Simpson that is – occurred.

Just as the vote came in, a voice could be heard exclaiming, “Oh my gosh.  I pushed green.”  Representative Becky Carney immediately turned her light on to ask Speaker Thom Tillis to change her vote to “no,” but she was not recognized.  At this moment House Majority Leader Paul Stam used a procedural move called a “clincher” to ensure that the veto override could not be reconsidered.  The clincher passed, and just like that, in a move reminiscent of the Medes and Persians, fracking was apparently accidently legalized in North Carolina as the result of one vote that one Representative called “a mistake.”

To be fair, Representative Carney, a veteran legislator, voted against Senate Bill 820 when it was originally passed, and spent most of the day lobbying other Democrats to uphold the Governor’s veto.  “I feel rotten,” Carney said, “I made a mistake, and I tried to get recognized to change it, as people have been doing all night on other bills, and it was too late.”

Under most circumstances, a member is allowed to change their vote, which frankly, happens quite regularly.  Presumably, this rule is in place because constituents can look up any bill and see which way their Representative voted, and constituents want that voting record to reflect the legislator’s true intent as accurately as possible.  However, according to House Rule 24(c), permission to change a vote “shall not be granted if it affects the result.”  While this rule of parliamentary procedure has received a great deal of criticism over the past several days, it is a well-reasoned one because it prevents legislators from hedging their bets, while adding a sense of finality and certainty to the decision-making process.

So exactly what are the unknown risks that were accidentally authorized last Monday night?  For an excellent article discussing hydraulic fracturing and its potential effects in North Carolina, I encourage you to read The Future of Fracking in North Carolina, by fellow staff-writer Kathryn Barge.  To provide a brief overview, arguments propounded by opponents of the bill read like a parade of horribles: tremors in fracking areas, increased water usage, increased road traffic, soil contamination of drill sites, and most notably contaminated drinking water.  Or, as former Speaker of the House Joe Hackney put it, “Fracking is nothing more than running a cocktail of chemicals underground, together with explosions, disrupting the groundwater, disrupting the geology, and further endangering our citizens.”

Other opponents, such as Rep. Darren Jackson, point to their own experience in other states that have legalized the process, namely, Pennsylvania.  Rep. Jackson argued on the House floor on June 14th, “Let me tell you what it’s like when I visit Pennsylvania.  First of all, you don’t drink the water . . . .  Number two, you don’t like to take a shower . . . .  And, the worst thing, I can’t overemphasize this enough . . . is brushing your teeth.  You have to use bottled water to brush your teeth . . . .  Vote ‘no’ now, it’s not worth it.”

On the other side of the debate, proponents of the bill have consistently held that these risks are antiquated, and with the proper regulatory scheme in place nearly all of them can be severely curtailed if not wholly eliminated.  Indeed, a study conducted by the Department of Environment and Natural Resources (DENR) states, “[a]fter reviewing other studies and experiences in oil and gas-producing states, DENR has concluded that information available to date suggests that production of natural gas by means of hydraulic fracturing can be done safely as long as the right protections are in place.”

To be sure, Senate Bill 820 simply legalizes fracking, and sets up a regulatory framework intended to ensure that the proper protections are in place.  Part III of the Act directs the Mining and Energy Commission (along with other regulatory agencies) to establish a regulatory program for the management of oil and gas exploration and development activities in the State; a regulatory program that sets forth a host of specific purpose for which the Commission must adopt rules.

Furthermore, Senate Bill 820 prohibits the issuance of permits for these activities until authorized at some point in the future by the General Assembly.  Thus, it enables the appropriate regulatory authority to develop a set of rules directed at curtailing the potential risk, at which time legislators will have a second shot at voting on whether those rules are satisfactory before allowing permits to be issued.  As Rep. Mitch Gillespie notes, “Everybody’s concerns will be heard and addressed during that process, as it will go through a two, two-and-a-half-year rule-making process.”

That is good news.  With the proper rules in place, we can realize the much needed benefits of job creation and energy independence.  However, for the sake of North Carolinians everywhere, let’s hope those rules are the result of legislative intent, rather than legislative protanopia.


Avatar photo
About Michael Hedgepeth, Former Senior Staff Writer (8 Articles)
Michael graduated from Campbell Law School in 2013 and from North Carolina State University in 2008 with a Bachelor of Arts degree in Economics and a minor in Business Management. Michael served as the Attorney General for the Student Bar Association. While at Campbell Law, he worked at the North Carolina Supreme Court as an intern for Justice Paul Newby, at the North Carolina General Assembly as an intern for Representative David Lewis, and as a Webster’s Scholar performing research for Professor Pat Hetrick. Michael was the 2013 recipient of the J. Bryan Boyd Award.
Contact: Email