Federal judge strikes down N.M. county’s fracking ban as unconstitutional

By Ellen M. Gilmer | 01/21/2015 08:39 AM EST

A county’s ban on hydraulic fracturing and drilling conflicts with both state and U.S. law, a federal court in New Mexico found this week.

The U.S. District Court for the District of New Mexico on Monday struck down a ban on fracking and drilling in Mora County, a rural area about 100 miles northeast of Santa Fe. County voters passed the ban in 2013, and Royal Dutch Shell PLC subsidiary SWEPI LP filed suit last year.

The decision is a win for industry and a major setback for environmentalists, who have had mixed results in championing a "local control" approach to oil and gas regulation around the country.


In Monday’s decision, Judge James Browning found that Mora County’s ordinance violated the U.S. Constitution’s Supremacy Clause by attempting to discard corporate rights protected by federal case law. The county’s measure explicitly noted that oil and gas companies "shall not have the rights of ‘persons’ afforded by the United States and New Mexico Constitutions," including First Amendment rights and due process.

The anti-corporate-rights language is mirrored in several other "community bills of rights" in towns that have worked with the Community Environmental Legal Defense Fund, a Pennsylvania-based nonprofit that advocates for local control over industry activity.

"The Defendants’ argument that corporations should not be granted constitutional rights, or that corporate rights should be subservient to people’s rights, are arguments that are best made before the Supreme Court — the only court that can overrule Supreme Court precedent — rather than a district court," Browning wrote.

CELDF Executive Director Thomas Linzey pointed to the judge’s statement about the Supreme Court as an acknowledgment of inadequacies in existing law.

"With this decision, the Court affirms what our communities already know, that the existing structure of law denies local, democratic self-governance," Linzey said in a statement. "The existing structure of law denies communities the authority to protect themselves from fracking. The existing structure of law denies communities the authority to protect their water and the natural environment."

Browning also found violations of state law, as Mora County’s measure prohibits what state law allows.

"Moreover, the Ordinance’s ban conflicts with state law by creating waste and not recognizing correlative property rights, which the [state] Oil and Gas Act prohibits," his ruling said.

The decision is the first significant federal court consideration of local drilling bans. If challenged, the Mora County case will head to the 10th U.S. Circuit Court of Appeals. County officials and environmental intervenors have not yet said whether they plan to file an appeal.

State courts in New York and Pennsylvania have upheld some level of local government control over oil and gas development, while Colorado courts have rejected local bans, and the Ohio Supreme Court is still weighing the issue.

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