The Mother of All Anti-Fracking Tools
The first county in the United States to outlaw fracking has an idea that could give environmentalists the upper hand—and deliver a major setback to big oil.
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In Mora County, New Mexico, a patchwork of prairie, foothills, and high peaks on the east flank of the Sangre de Cristo Mountains, unemployment stands at 16 percent, county workers operate out of leaky temporary buildings, and the population density is so low—just two people per square mile—that the tiny community and its largest town, 300-person Wagon Mound, are still classified as frontier by state health officials.
In short, Mora isn’t the kind of place that comes to mind for a national showdown on fracking. But in April 2013, county commissioners took center stage in the fight by passing the Community Water Rights and Local Self-Governance Ordinance, which declared it illegal for companies to extract hydrocarbons anywhere in the county, making Mora the first in the U.S. to ban oil and gas drilling outright, on public and private land.
Not surprisingly, lawsuits soon followed. The county was sued in federal district court in Albuquerque late last year by the Independent Petroleum Association of New Mexico (IPANM) and three local property owners. In January, a second suit was filed by Shell Western, a subsidiary of Royal Dutch Shell, the world’s sixth-largest oil company.
The likely outcome? Busy lawyers. But the suits could also set a nationwide precedent by settling an interesting argument: Does a community’s right to self-governance trump the rights of corporations? The county ordinance’s basic aim is to protect the water supply in a parched region of a drought-stricken state, but it also contains a bill of rights for the environment, which argues that natural ecosystems “possess inalienable and fundamental rights to exist.”
The lawsuit by Royal Dutch Shell claims that Mora County’s rule denies the company its constitutional rights, chief among them corporate personhood, which states that a business has the same rights as an individual. (The controversial Citizens United Supreme Court ruling cemented corporations’ constitutional right to free speech.)
“This ordinance denies our property interest by declaring to criminalize virtually any activity undertaken by a corporation relating to oil and gas exploration and production,” says Curtis Smith, a spokesman for Shell.
Some environmentalists say that’s the whole point and are eager to test it. The ordinance was drafted with help from the Community Environmental Legal Defense Fund, a Pennsylvania nonprofit. CELDF cofounder Thomas Linzey acknowledges that provisions in the document contradict existing laws, but he relishes the chance to defend the self-governance statute before a judge. As the case goes into litigation, tiny Mora County, which doesn’t even have a stoplight, could help usher in a series of similar laws, and CELDF is working hard to ensure that this happens. It’s a fight Big Green groups have failed to take up, says Linzey, so it’s being waged at the grassroots level.
“Environmental folks don’t seem to give a shit,” he says. “They complain that the existing laws, which are stacked against us, are the only tools we have. We say maybe you should invent some new tools, because you’re not protecting anything.”
Banning oil and gas extraction under the purview of local government isn’t new. In 2010, Pittsburgh became the first city to ban fracking, which uses high-pressure water and chemicals to release oil and gas from subterranean shale deposits. Since then, more than 400 municipalities have instituted similar resolutions. The bans have mostly come in the form of zoning changes that keep the industry outside city limits.
But gas companies don’t drill in cities; they drill in the areas around them. That’s what makes Mora County’s ordinance unique. It bans energy extraction from a huge undeveloped area, nearly 1.2 million acres of rolling prairie, piñon and ponderosa forests, and 13,000-foot peaks.
“The oil and gas industry felt like it could contain these sorts of initiatives on a city-by-city scale,” says Eric Jantz, a staff attorney at the New Mexico Environmental Law Center, which is defending Mora County in the suit brought by IPANM. “But once you start getting into countywide prohibitions, that’s something the oil and gas industry has bigger concerns about.”
John Olivas, the Mora County commission chairman who helped pass the ordinance, says county commissioners voted for the sweeping legislation because regulations and zoning rules—typical anti-fracking tools—are simple loopholes that the industry would one day march through. “If the price is right for these corporations,” he says, “they’re coming.”
Karin Foster, the executive director of IPANM, counters that Mora County has been commandeered by a rogue environmental group. “This community-rights ordinance appeals to uneducated people in small communities that feel like they need to fight the man,” Foster says. “I don’t think the people leading them have their interests in mind.”
Some locals agree. Mora County is 80 percent Hispanic, and many residents are suspicious of Anglo groups coming in with an agenda, be it industrial or environmental. “That’s a real missionary attitude, to come into a place and say, ‘We’re going to protect you,’ ” says Sofia Martinez, an environmental -justice activist from Wagon Mound. Martinez opposes fracking, but she wishes that the county had taken a regulatory approach, one that didn’t expose it to potentially lengthy and expensive lawsuits. (Though the county has pro bono representation, by CELDF, among others, it may have to pay damages if it loses.)
Mora County’s case is likely to take years to resolve. Any ruling will almost assuredly be appealed, moving the case to the Tenth Circuit Court in Denver. But for now, Mora has become a cause célèbre, with other counties—like San Miguel, in New Mexico, and Johnson, in Illinois—considering similar bans. Cities and counties are now even working on community ordinances outlawing things like factory farms and GMO crops.
“We’ve all heard about Mora County,” says Sandra Steingraber, one of the nation’s most outspoken anti-fracking activists and author of Raising Elijah: Protecting Our Children in an Age of Environmental Crisis. Steingraber has been watching the fight all the way from upstate New York, where she’s battling at the township level. “The science is certainly on our side, and it points to the need for a nationwide ban,” Steingraber says. “Now we’ll see if the law ends up on our side.”