OIL AND GAS

N.M. county on fracking ban: 'We're not done yet'

MORA, N.M. -- One of the nation's strictest fracking bans just got stricter.

In late April, Mora County, a bucolic swath of grasslands and pine-spiked mesas in northern New Mexico, adopted what proponents tout as the nation's first countywide prohibition on fracking.

At a county commission meeting here last night, the commissioners upped the ante, unanimously voting to expand the ban to individuals as well as corporations.

Commission Chairman John Olivas said the moratorium on drilling by individuals was needed because the ordinance applies only to companies.

The ordinance, approved in a 2-1 vote on April 29, was based on a template crafted by the Community Environmental Legal Defense Fund, which has helped establish 150 "community rights" ordinances around the country; 35 of those bar oil and gas development (E&ENews PM, April 30).

The measure establishes a "bill of rights" for residents and nature that places a premium on clean air and water and intact landscapes. The ordinance prohibits activities that would undermine those rights, including hydraulic fracturing to tap shale gas.

The organization's primary focus is on challenging corporate rights through the assertion of community rights. So the ordinance based on CELDF's template left a loophole that needed to be closed, Olivas explained.

"What the ordinance does is it strips corporations of the right of personhood. So we didn't target any individuals for that reason," he said. "Why didn't we put in individuals? I don't know why we did that."

All three commissioners voted for the extension of the ban to individual would-be drillers.

That's one more vote than the ordinance received back in April. Commissioner Paula Garcia had voted against the measure -- but not because she supports oil and gas drilling, she explained.

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"This ordinance is visionary, but somewhat polarizing," she said over a glass of iced tea at Hatcha's Restaurant yesterday afternoon, a whiff of smoke from two wildfires burning in nearby Santa Fe National Forest permeating the air. "We've never really had an open discussion about it."

Garcia added that she is not comfortable with the CELDF using the county as its "soapbox."

Like Olivas, Garcia -- who is also the executive director of the New Mexico Acequia Association, a coalition of traditional irrigation ditch managers -- ran for the commission largely on a pro-environment platform, promising to protect the 1.2-million-acre county's unusually abundant water and picturesque landscape. Both believe that federal and state regulations do not adequately safeguard the land, water and air from the harmful effects of oil and gas drilling.

Where Garcia differs from Olivas, she said, is in how to secure local protections. She's concerned that the ordinance is so ambitious and experimental that it leaves the county vulnerable to a legal challenge by industry and that the county will have to go back to square one if it loses in court.

Garcia said she would have liked to have seen more discussion of a variety of options, including the possibility of using the county's zoning authority to control drilling instead of relying on the untested community rights doctrine pushed by CELDF.

She points to an ordinance Santa Fe County passed in 2008, which imposes restrictions on drilling but does not ban it altogether, or a more recent measure adopted by the city of Dryden, N.Y., which specifically prohibits fracking within city limits by revising the town's zoning ordinance. Last month, a state appeals court upheld Dryden's ban; energy companies vowed to appeal the ruling (EnergyWire, May 3).

"It's well understood that counties can do land-use regulations," she said.

But some have interpreted Garcia's "no" vote on the Mora County ordinance as a vote for drilling. At last night's commission meeting, ordinance supporter Catherine MontaƱo went so far as to demand Garcia's resignation from the commission.

"You have perjured your oath" to uphold the public trust, she told Garcia. "You should step down."

'A special place'

Mora County, population 5,200, is a remote, rural outpost with a long memory. Some of the families here -- the local phone book is dominated by Spanish names -- have lived in the area since before it became part of the United States under the treaty that ended the Mexican-American war in 1848. Many of them were, and still are, ranchers.

If Royal Dutch Shell PLC or other companies drill on the 144,000 acres of mineral leases they hold here, the county's bucolic way of life, largely unchanged for centuries, would drastically change, drilling critics say.

"I've always thought Mora County was a very special place, because we've held onto those traditions," Garcia said. "We value our way of life more than we value money."

The area's history, along with its abundant water resources, is part of the reason many in the community supported the ordinance. And the two are intertwined; the county's sprawling cattle ranches are sustained by a high water table, fed by runoff from the surrounding Sangre de Cristo Mountains. Despite New Mexico's severe drought, which has left much of the state a brittle brown, Mora County is eerily green.

"Sometimes you see water flowing down the side of the street, and you might think, 'Who's wasting water?'" said Olivas, driving past a trio of heifers grazing in a verdant field on the edge of town. "But it's just because the water table is so high -- water comes up from the ground."

He is worried that those highly coveted water resources could be contaminated by fracking, he added.

But not everyone in the community supports the county's ban -- or the way it came to be.

Audrey Keller, who lives in Cleveland, N.M., another Mora Valley community just down the road from the town of Mora, said oil and gas development could provide jobs -- perhaps including one for her husband, a construction worker who now has to rely on work in other parts of the state.

And the commission should have done more to involve the community in the decisionmaking process, added Keller, who is a certified nurse's aide but currently works as a waitress because of the lack of local jobs in her field. "I kind of feel like a few people took the power out of our hands," she said. "It just doesn't seem like a democracy here at all."

Keller said she thinks most of the residents of Mora County support the ban but only because they tend to be skeptical of any kind of change. "There could be some effects on the environment, but I think we should have had a discussion of what the good things could be," she said.

But building an economy based on oil and gas development could backfire, drilling critics say. "There's a boom-and-bust cycle, and during the boom, property values go up, so when the bust comes, people can't afford to live there anymore," said Kathleen Dudley, a local organizer with CELDF who lives in Mora County.

And drilling could undercut efforts to revitalize small-scale agriculture and expand ecotourism in the area, Olivas said.

Renewable energy development, especially solar, which could take advantage of the region's 330 days of sunshine, and biomass from trees culled from nearby Santa Fe National Forest, would make a lot more sense for the county than oil and gas development, he added.

Olivas said there were several public meetings leading up to the passage of the ordinance. But he added that getting the word out has been a challenge. The county's only newspaper folded a while back, and some residents do not have Internet service, he said.

Courting the courts

Ultimately, CELDF is hoping that Mora's ordinance, or one of the 34 other local oil and gas ordinances it helped put on the books, will be challenged in court. It wants to test its legal argument that community rights should trump corporate rights.

But Garcia and some Mora County residents are concerned that if its new ordinance is challenged, the county, whose current budget is just under $1 million, won't have the funds necessary to pay for its defense. CELDF has agreed to provide pro bono legal counsel, but the county would have to pay for associated travel and court filing fees, which Olivas estimates would be about $100,000. He said the county is considering setting up a fund that would be supported by donations from the community to pay for those costs.

But that fund may never be tapped. CELDF has yet to get its wish: None of the 35 oil and gas ordinances it has backed have been challenged in court -- at least so far.

Olivas said the county plans to cover all its bases, however. It is now considering changing its land-use plan to better address oil and gas drilling, just in case.

Olivas: "We're not done yet."

Click here to read Mora County's ordinance.

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