Faced with a rising tide of sweeping municipal legislation banning hydrocarbon extraction, mineral owners and oil and gas operators are taking the fight to court. The Independent Petroleum Association of New Mexico, along with an individual landowner and two limited liability corporations, are suing Mora County, New Mexico, alleging that the ordinance passed by the county violates the Plaintiff’s constitutional rights and exceeds the authority of the county council.
The Mora County ordinance, the first of its kind in the United States, is described by the county as a measure to protect the local water sources and the communities that rely on them. However, the ordinance specifically targets oil and natural gas extraction. The suit alleges that the real purpose of the ordinance, rather than protection of natural water sources, is to prevent lawful development of oil and natural gas resources within Mora County. The ordinance prohibits the extraction of water for use in the extraction of subsurface oil or gas, and also prohibits importing water into the county for that purpose. The ordinance further provides that no permits, licenses, privileges or charter issued by any state or federal agencies that violate the ordinance will be valid. The ordinance passed by Mora County is a variation on an ordinance developed by Pennsylvania attorney Thomas Linzey and adoption of similar ordinances is being considered by dozens of communities across the country.
The Independent Petroleum Association argues that the ordinance violates the substantive due process rights of the organization’s members and exceeds the authority of the county council. They further argue that the ordinance violates fundamental property rights, and that the ordinance does not meet the strict scrutiny standard because the ban is not narrowly tailored to serve a compelling governmental interest. In particular, they note that even though the stated purpose of the ban is to protect the water supply, the ban applies only to hydrocarbon extraction while ignoring the agricultural industry, a source of significant water pollution.
In Colorado, voters in Fort Collins and Boulder banned fracing for the next five years, and voters in Lafayette passed a prohibition on new oil and gas wells. Colorado Governor John Hickenlooper is suing to overturn the city of Longmont’s fracing ban, passed one year ago. The Governor, a former mayor of Denver, insists that cities do not have the power to ban fracing. Activists in some states are reportedly planning to seek statewide bans, and there is apparently some public support for a statewide ban in California.
The specific powers of cities and counties vary from state to state and depend on state constitutions and “home rule” provisions. The law regarding whether city or county ordinances are pre-empted by state law also varies from state to state. Attorneys from the Independent Petroleum Association of New Mexico argue that the New Mexico Oil and Gas Act and the Oil Conservation District’s rules create a regulatory scheme so pervasive that the Mora County anti-fracing ordinance interferes with state law.
There are several important issues involved in any fracing litigation. First, it is obviously critical to safeguard water supplies. Water is becoming an increasingly scarce commodity and must be protected. However, to date, the opposition to fracing has been based on hysteria and assumptions, rather than facts. In fact, so far, there has been no research that has definitively tied fracing to any water quality issues. Each of the claims of water contamination due to fracing so far have, upon legitimate investigation, been shown to be unfounded. in addition, consider that the people that own minerals are not usually huge corporations. They are often individuals, including retired persons, who depend on the royalty income to live. Don’t these people have the right to use their property in legitimate ways, rather than have their property rights taken away from them for frivolous reasons? They also have a constitutional right not to have their property taken from them, in effect, without just compensation. Protection of water sources is critical, but protection of constitutionally granted property rights is also important.
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