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Is Fracking A Civil Right? A New Court Case May Decide

By Emily Atkin on November 15, 2013 at 12:40 pm

"Is Fracking A Civil Right? A New Court Case May Decide"

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President Obama walks past an oil rig outside of Maljamar, NM.

President Obama walks past an oil rig outside of Maljamar, NM.

CREDIT: AP Photo/Pablo Martinez Monsivais

Horizontal drilling, hydraulic fracturing, drilling for oil, exploring for natural gas: None of that is allowed in Mora County, New Mexico.

On April 29, the Mora County Commission made history and passed a first-of-its-kind ordinance banning the exploration and extraction of oil, natural gas, and hydrocarbons from its land. The ordinance, called the “Mora County Community Water Rights Local Self-Government Ordinance,” passed the commission on a 2-1 vote.

“All Mora County residents possess the fundamental right and inalienable right to unpolluted natural water,” the ordinance says. “This right shall also include the right to energy practices that do not cause harm, and which do not threaten to cause harm, to people, communities, or the natural environment.”

But the ordinance may not last. A statewide oil and gas association and three Mora County landowners sued the county and its commissioners in federal court on Monday, claiming the ban on extracting natural resources violates three of their civil and Constitutional rights — including freedom of expression.

The plaintiffs, led by the Independent Petroleum Organization, assert that Mora is using its purported environmental concerns as a veil for the real purpose of the ordinance, which they say is to “eliminate the constitutional rights and privileges of corporations.”

“If defendants’ true goal was to protect surface and groundwater supplies within the County,” the lawsuit says, “the ordinance would address other industries that are known sources of water pollution, such as the agricultural industry.”

New Mexico is rich in fossil fuels. In 2012, more that 27 percent of the state’s general fund revenue came from taxes and royalties on oil, natural gas, and carbon dioxide production, according to the lawsuit. 88,000 citizens of New Mexico are directly employed by the oil and gas industry, the suit says.

Mora itself is a small county with around 5,000 residents, compared with New Mexico’s population of more than 2 million, Census data shows. The county has about 2,000 square miles of land, compared with New Mexico’s total square footage of 121,200.

But the amount of resources now unavailable to the oil and gas industry does not matter as much as the precedent the ordinance sets for other counties, cities, and even states that want to put an end to fossil fuel extraction. Just last week, three Colorado cities (and possibly a fourth) voted to ban fracking in their areas. If the IPO’s lawsuit against Mora succeeds, there will be a strong basis for future challenges to any other similar law or ordinance.

However, if Mora’s ordinance holds up in court, it will become that much harder for the oil and gas industry to challenge future bans on fossil fuel extraction that may crop up in other places.

Specifically, the IPO — joined by landowners Mary L. Vermillion, JAY Land Ltd. Co. and Yates Ranch Property — is arguing that the ban violates their rights under the First, Fifth, and Fourteenth Amendment.

The claim under the Fourteenth Amendment says that the ordinance violates the plaintiffs’ fundamental property rights, as the landowner plaintiffs all own mineral leases that contain fossil fuels. If it were not for the ordinance, the plaintiffs would seek to lease their minerals to a corporation for extraction, the lawsuit said. The Fifth Amendment claim says it is an abuse of government authority to infringe on people’s interest in real property.

The claim under the First Amendment is a little more complicated, and suggests that exploring for oil and gas is protected by freedom of expression. The lawsuit says Mora’s ordinance violates the portion of the First Amendment called the overbreadth doctrine, which allows plaintiffs to challenge laws that they believe deter constitutionally protected expression.

“A resolution or ordinance that does not merely regulate expressive activity, but instead expansively prohibits First Amendment activities cannot be justified ‘because no conceivable governmental interest would justify such an absolute prohibition of speech,’” the lawsuit said.

Mora County Commissioner John Olivas told the Santa Fe New Mexican on Tuesday he had not seen the suit, but defended the commission’s decision to enact the ordinance.

“I was in a position to protect our resources in Mora County,” he told the paper. “We’re ready for this fight.”

The full lawsuit can be found here.

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