By KAY MATTHEWS
It’s already all over the news, in both New Mexico and the nation. Mora County has taken a stand: “It shall be unlawful for any corporation to engage in the extraction of oil, natural gas, or other hydrocarbons within Mora County.” With that statement northern New Mexico’s Mora County becomes the first county in the U.S. to ban oil and gas development by ordinance. On Tuesday, April 29, County Commission chair John Olivas and County Commission vice-chair Alfonso Griego voted in favor of what is officially called the “Mora County Community Water Rights and Local Self-Government Ordinance.” County Commission member Paula Garcia voted against the Ordinance.
Unlike the U.S. government, or any other national government in the world today for that matter, Mora County is trying to do its part to reduce greenhouse gas emissions. Section 4.4 of the Ordinance reads: “All residents, natural communities, and ecosystems in Mora County possess a right to a sustainable energy future, which includes, but is not limited to, the development, production, and use of energy from renewable fuel sources, and the right to have an energy system based on fuel sources other than fossil fuel sources. 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.”
According to recent data, the concentration of CO2 in the atmosphere, the direct result of the burning of fossil fuels, will peak this month above 400 parts per million (ppm). Though the peak has much to do with seasonal changes in CO2, scientists see it as a frightening trend. “At this pace,” noted climate scientist Ralph Keeling said, “we’ll hit 450 ppm within a few decades.” If Keeling is right, in the decades to come we’ll be as far above livable levels of atmospheric CO2 than we were once below it.
It’s no surprise that as global CO2 emissions storm past frightening thresholds, so too do the profits of the world’s largest oil companies. The combined windfall of BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell reached a new record of nearly $140 billion in profits in 2011. In the first half of 2012, they earned an average of nearly $350 million each day.
Mora County’s action has been long in the making and not without contention over strategy. According to Commissioner Olivas, he and Commissioner Garica, who were both elected in 2010, drafted an ordinance, with the help of the New Mexico Environmental Law Center, that was presented to the commission in September of 2011 but wasn’t acted upon at that time. The commission then sponsored a series of ten work sessions and passed a moratorium on gas and oil development in April of 2012, which expired April 13, 2013.
During that time other local governments in New Mexico were beginning to chip away at the power of oil and gas, an industry that has for so long dominated New Mexico politics. In January of 2010 neighboring San Miguel County enacted a one-year moratorium on oil and gas drilling and exploration to give it time to strengthen county-level regulations around energy and mineral extraction. Subsequently, in April 2010, the Commission formed an Oil and Gas Ordinance Task Force to help shape new regulations. On May 19, 2010, the Las Vegas City Council, after holding two public hearings on the issue, unanimously voted in favor of Ordinance 10-16, placing a two-year moratorium “on the approval of conditional use or other permits for Oil, Gas and Geothermal Drilling, Exploration and Extraction within the City of Las Vegas city limits, San Miguel County, New Mexico” (see Pat Leahan’s article in the July 2010 issue of La Jicarita News).
According to Leahan, of the Las Vegas Peace and Justice Center, activists in both counties worked for years on strengthening regulatory oversight and are proponents of a “belt and suspenders” approach —combining essentially a ban-approach with a strict regulatory ordinance so that if one component is struck down by the legal system there is a backup in place to protect both counties. In the meantime, moratoriums enacted by the counties and city would provide adequate protection. Leahan explained that she and other activists spent years developing relationships with government leaders and community people across both counties and felt confident they would achieve a united front in their approach to “what we all want, to prevent any oil and gas development in Mora and San Miguel counties.”
Eventually, Mora County and the City of Las Vegas relied on the expertise of the non-profit group Community Environmental Legal Defense Fund (CELDF) based in Pennsylvania, a state that has been dealing with oil and gas development for many years, particularly by means of hydraulic fracturing, or fracking, a process where water and chemicals are pumped into a wellbore with enough force to crack the rock and release the gas, oil, or other hydrocarbons. The CELDF provided a template ordinance, and on April 2, 2012, the city enacted the Las Vegas Community Water Rights and Local Self-Government Ordinance that bans fracking within the city limits. Mora County officials used the same template and consulted with the organization on all of the wording included in the final Ordinance.
Leahan has mixed feelings about the Ordinance. “They have no regulatory ordinance in place to back up their ban. They’ve got the belt but no suspenders. It seems inevitable that the State of New Mexico or the oil and gas industry, or both, will sue Mora County. As one of the most economically disadvantaged communities in the state and the nation, how will they be able to afford such a huge legal battle? On the other hand, what better county than Mora to call attention to the David vs. Goliath struggle many communities face against the extractive industries? I just hope it’s not at the expense of the people of Mora County.
I e-mailed Paula Garcia and asked why she voted against the Ordinance but she didn’t respond. Olivas expressed disappointment that as both head of the Mora Land Grant and executive director of the New Mexico Acequia Association she failed to support this measure but that she, like Leahan and others, had expressed concern about legal action from the oil and gas industry. Olivas feels that the county is adequately prepared to defend its position; the CELDF will act as legal counsel if the county is sued by the oil and gas industry. That service will be pro bono, but the county will have to raise the money to pay for the Pennsylvania lawyers travel expenses. Olivas told me that to his knowledge over one hundred communities have passed ordinances regulating oil and gas development and none have been challenged (according to Leahan, this has not been confirmed). But with Shell Oil holding leases on around 100,000 acres in the eastern part of the county, the ordinance seems likely to wind up in court. “I’d rather fight industry in court,” Olivas told the press, “than clean up after them when they leave our community,”
The County lays claim to its authority in passing the Ordinance in Section 2., citing the Treaty of Guadalupe Hidalgo, Article VIII and Article IX, the Declaration of Independence, the New Mexico Constitution, Article 2, and the Mora County Comprehensive Land Use Plan, which states, “[t]he connection between our land, our water and our people has sustained our culture since the first settlements in Mora County, and our future depends on keeping these connections strong. Water is a vital link, which, if severed from the land, will also fragment our people from their land. The allocation of our limited water resources must recognize traditional subsistence agricultural and grazing activities as a priority over other types of more profitable land uses. Water is not just a commodity to be bought and sold, or exploited for short-term gains. Water is the lifeblood of Mora County’s traditions, culture and land use. A sustainable future for Mora County requires protection of the most valuable resource for our communities—the Water!”
The Mora County Commission issued a news release calling on the New Mexico state legislature to follow suit in passing a bill that would ban oil and gas drilling and related activities statewide. Unfortunately, in the 2013 session one senator tried to achieve just the opposite: Carlos Cisneros (D-Taos) introduced Senate Bill 463 that would have prohibited any municipalities or counties from regulating the “exploration, development, production and transportation of oil and gas and any associated remediation and reclamation activities related thereto.” (see La Jicarita article “Legislative Update on a Really Bad Bill”). Fortunately, the bill never made it out of committee, but it brought to the forefront the problems counties such as Mora and neighboring San Miguel County face as the oil and gas industry intensifies efforts to secure leases without adequate regulatory oversight.
Nearly 20 percent of Mora’s less than 5,000 residents live below the poverty line. And at a density of less than three people per square mile, it’s just the kind of sparsely populated, rural place oil and gas firms like best. But County Commissioners Olivas and Griego mean business: under Section 8, Enforcement, is this provision: “In the event that this ordinance is overturned or nullified, for any reason, a moratorium on the extraction of oil and gas within the County of Mora shall become effective on the date that this ordinance becomes inactive. That temporary moratorium shall have a duration of no more than six months, during which the Board of County Commissioners shall adopt another ordinance which permanently bans hydrocarbon extraction within the County of Mora.”
A balanced look at the Mora ordinance on fracking. I still feel that the proponents of this approach, rather than strict zoning regulations, are not taking into account the strong probability that in response, the legislature will simply preempt ALL local regulation of oil & gas, thus wiping out existing regulation in Santa Fe & Rio Arriba, and precluding Mora & San Miguel from being able to pass zoning regulation to replace the ordinance. The proponents do not have a plan of how to replace the state oil leases which provide the majority of funding for education in NM, and this will be used as a major issue to lobby legislators against the Santa Fe/Taos liberals who pushed this ordinance & think they can stop such a bill for preemption. Only massive organizing, with real broad coalitions across the whole state, would be able to defeat the oil & gas lobby on these issues.
This is a great article. i’m encouraged to see communities standing up to this kind of greed and disrespect for our mother earth.
Towns in NY have enacted fracking bans that have been more or less successful, so far, despite industry backlash. see http://www.newsday.com/opinion/oped/ferguson-the-home-rule-fight-against-fracking-1.5215762. here’s a quote:
“do municipalities really have the right to ban fracking? Can rural towns, in effect, make policy for the state? A few years ago, most lawyers assumed that local communities were powerless because New York’s Environmental Conservation Law 23 gives the state sole authority to regulate the industry. The law has been on the books for years, but it had never been tested in court.
When fracking became a hot issue, a few enterprising attorneys took a closer look at the statute and concluded that zoning ordinances do not constitute industry regulation. Towns may not have a right to prescribe setbacks or casing requirements for gas wells, they argued, but they still have the right to control development.
The limits of the law have now been tested in three lawsuits, and in each instance the court upheld the town’s right to ban fracking; two of those cases were recently upheld on appeal.
Even if New York were to enact a state law that explicitly supersedes local land-use laws, it still wouldn’t be clear sailing for the gas industry. “Home rule” isn’t a right granted by legislation, it’s guaranteed by New York State’s constitution.”
I am not familiar enough with NM law to know how NM’s home rule clause works the same way as NY’s (i suspect it does). No strategy is without risk, and anything that makes it difficult and costly for corporations to do business is worth a try.
Thanks, Lorien. I just saw Truth-out.org’s article regarding the cases in New York. La Jicarita will be following up on Mora’s Ordinance and legal standing as well as other possible strategies.
Thank You Olivas and Griego for passing this ordinance! Thank you for listening to the People. Thank you everyone who fought long and hard to make such history happen. Now, wind turbines, solar farms, biofuels, renewables of every imagination decades overdue – let’s make it happen, Now.
I have met many elderly gente from Mora. Duran’s Chavez’s , Abeytas. Thank all of you for preserving what belongs to the people not BIG OIL
What is significant is that in New York that Lorien refers to, unlike the recent Mora County vote, they are using ZONING regulation, which is an established power of local governments, to restrict fracking. The recent Mora vote was on an ordinance which went far beyond any zoning law, declaring a multitude of untested local powers. In contrast, zoning laws have been upheld over & over again, all the way up to the Federal Supreme Court, while the type of ordinance in Mora has yet to be tested in any high court. The only related court case I know of in Pennsylvania, where the Mora type ordinance have been passed in many cities, are on state wide laws attempting to preempt all local regulation of oil & gas, and that is still pending in the State Supreme Court. The ordinance themselves, as far as I know have NOT been contested yet by oil & gas companies, in part because they mainly have been passed in locales where fracking is unlikely, much as the ordinance in Las Vegas, NM. The regulations in Santa Fe and Rio Arriba, and the ones that were being developed in Mora & San Miguel, before the Mora ordinance, are ZONING regulations.
New York municipalities have been able to win victories under their planning and zoning authority because New York is a home rule state, which gives counties more autonomy. Mora County is not a home rule county. Mora County is within a land grant, and it is possible that land grant sovereignty would be useful in sustaining a ban against fracking.
La Plata, CO attempted to ban fracking under their land use regulations and the ban was overturned by means of state preemption. http://www.ncbr.com/article/20130222/EDITION/130229956?pagenumber=2
This is why the ban put in place in Mora County specifically challenges state and federal preemption doctrines.
True, Robin, the Mora ord has not been tested in court. Still, I think what’s key here is the municipality’s right to home rule, not the specific type of ordinance. But I’m no expert, so we’ll see.
On a sadder note, here’s a cautionary article about what’s going on in Pennsylvania with fracking. As you may know, oil & gas cos have been fracking in Penn for a while. Part of the problem is that people are so desperate for money and work (the area’s very depressed), that they welcome the frackers, who offer them jobs. It’s an old old story. Still makes me weep,
and makes me feel very grateful to the people in Mora County who passed this ordinance!
Why did you interview Pat Leahan and not Kathleen Dudley? Leahan may be quick to take the bows, but she did NOTHING to get this ordinance passed. Kudos go to John Olivas, Ford Griego, Kathleen Dudley of Drilling Mora County, and most of all to the concerned citizens of Mora County who have worked to get this passed for the last five years. Credit where credit is due!
I interviewed Pat Leahan because she and others have been working for years on tightening regulations on oil and gas development in both San Miguel and Mora counties and don’t necessarily support the approach that the two Mora County Commissioners took. I also spoke with Commissioner Olivas about why he supports the Mora County Community Water Rights and Local Self-Government Ordinance and presented this point of view in my article, which I think was a fair and balanced look at a complicated situation. The citizens of Mora County have been working a long time to protect their land and water but are not all in agreement that the passage of this Ordinance is the best way to do that. La Jicarita will be publishing several more articles regarding this issue in the coming week.
Everyone knows your knack for spin, Lee, but it is self-evident when reading this article that I take no bows whatsoever for passage of the CELDF Bill of Rights Ordinance in Mora.
Also, you say people have been working on getting this ordinance passed “for the last five years.” You were not on the ground working with us on oil and gas issues in this region five years ago, so I can understand your error. At that time — actually even less than five years ago — Kathleen Dudley was working with the NM Environmental Law Center on drafting a regulatory ordinance for Mora County.
Now how ’bout we put our energy to more productive use and take on Shell Oil instead of each other?
“Leahan explained that she and other activists spent years developing relationships with government leaders and community people across both counties and felt confident they would achieve a united front in their approach to “what we all want, to prevent any oil and gas development in Mora and San Miguel counties.” ”
Yeah, tell me that’s not Leahan taking bows for a victory she had no part of.
You should interview the activists who got this done.
I’ll say it again, Lee. I take zero credit for the CELDF ordinance from Pennsylvania, and that is apparent in this article. I still don’t get why you’re picking a fight here. It appears as though there is an attempt to drive a wedge between local folks who all want the same thing but just have differing views on how to get there. If so, that’s too bad. Shell Oil wins when the community is divided.
I hope any further posts will be about the serious issue facing all of us — the takeover by the extractive industries and how we can stop them. Thanks.
Pat, Just answer a simple question for me, are you in support of a Community Rights Ordinance for San Miguel County?
I have not seen nor heard anything concrete from you or your group on even a belts and suspender approach. A community rights ordinance with a back up of “strong” regulations has been a possiblity, but I have heard nothing to start this process from your group or a concrete proposal. You have put out a very mixed message and that has contributed to the mixed messages I hear from the community. Also people have expressed confusion over your lack of support to address the problem of the mayor expressly breaking the laws of the city charter on several accounts, including his refusal to sign the ordinance he and you originally so strongly supported. We cannot ask people to follow leadership that does not follow the laws and expect people not to be confused. I have nothing to gain from this issue, but the hope that we will
leave land, water and air that is clean and healthy for our children and grandchildren, so that is why it is important to me that oil and gas not come in here and create more destruction than they have demonstrated in other parts of the country,, including Farmington. Oil and gas has demonstrated over and over again thay regulations have no effect on what they choose to do, it just gives us a chance to “limit” how much destruction.
Although your “simple question” is not at all a simple question, and although the statement about me putting out no message as well as a mixed message is itself, well, a mixed message, I will do my best to address the comments.
~ A Community Rights Ordinance, according to CELDF’s Thomas Linzey, is a long-term strategy that will take decades and require “a change in the structure of law itself.” Linzey says it will require localities and states “stitching themselves together” and that “eventually 10 years, 20 years down the road … these states are going to come together through their municipalities to make federal constitutional change,” and that the ordinance is “just the first step” in overturning “the four legal doctrines” that will eventually stop corporations from abusing their power. So, the Community Rights Ordinance is a long-term strategy with goals that I support and hope will be successful. And I agree with Thomas Linzey that it will take many years before this strategy works.
~ And in the meantime, in addition to long-term goals, we need short-term strategies because Shell Oil is here now. The leases are signed. They wanted to start drilling 2 summers ago. We have managed to keep them at bay thus far primarily through moratoria. Multiple short-term strategies need to be employed, including strict regulatory ordinances. This issue is too important, and this industry is too powerful, to implement only one single strategy, and a long-term strategy at that.
~ You mention that you’ve heard nothing “concrete” from our “group.” If you’re referring to PROTECT SMC, of which the Las Vegas Peace & Justice Center is a member, well, perhaps you don’t have access to the local newspaper or local radio. We have been running a long series of articles (“Oil and Gas Issues”) in the Las Vegas Optic, with our group identified on each article. We have been discussing it frequently on local radio (and even a couple of times on public radio) for awhile now. We’ve had open meetings. Some of your colleagues came a few times. We attended some of your meetings. We have spoken out at public hearings. You were in attendance at a public screening of a local Oil and Gas documentary where we tried to speak about the belt-and-suspenders approach. There was a meeting at the home of someone in your group, where the PROTECT folks apparently (I wasn’t there) tried to explain their approach. I heard it didn’t go well and that you left early in anger. CELDF folks have made it very clear, abundantly clear, that there is no room at all for a regulatory approach, even as part of a wider plan. A CELDF representative came to Las Vegas and said (at Luna Community College) that anyone who works with the regulatory approach in any way “is not a real activist.” I was there. I heard him say it. So y’all haven’t exactly put out the welcome mat. (In fact, I just re-read the last sentence of your comment above, where you end by closing the door again on the idea.)
~ You inquire above about your efforts to recall Las Vegas Mayor Ortiz and my lack of support for that recall because, as you say, by not signing the Community Rights Ordinance “the mayor [is] expressly breaking the law…” Well, returning to the words of CELDF’s Thomas Linzey, he specifically says that signing the Community Rights Ordinance IS breaking the law (that’s a key part of the strategy). And I cannot support a recall that is a Catch-22 — Break the law, mayor, by signing the Ordinance, and if you refuse, we will recall you for breaking the law. The recall option in a city’s constitution is a far too important tool to be implemented thusly. It would set a dangerous precedent.
Apologies for the length of this post, but I wanted to address Cordia’s comments with some degree of thoroughness. And if this post is read with an open mind, it might add clarity to the discussion.
By the way, Cordia, you already have all of my contact information. Please feel free to get in touch with me at any time. I’d be happy to talk with you further. Thanks.
Despite the lengthy dissembling, it is a quite simple question. You cannot support a “belt and suspenders” approach without supporting both the belt and the suspenders. If Leahan does not support the Community Rights Ordinance, she does not and cannot support a belt and suspenders approach.
Pat Leahan was at Las Vegas City Council tonight, attacking the Community Rights Ordinance and Thomas Linzey, director of the CELDF. Her actions speak more loudly than her words.
FWIW, Leahan’s claim that “CELDF folks have made it clear that there is no room at all for a regulatory approach,” that’s just another falsehood. That meeting, which was held in my home, was called specifically to share with the “belt and suspenders” advocates EXACTLY HOW a regulatory ordinance can be integrated with a CRO. We even offered to have CELDF draft the language, because CELDF has offered to draft the necessary language if we choose to take that approach.
As for the Mayor, that is a separate issue. If his recall were all about his refusal to sign the ordinance, we would have simply filed a writ of mandamus compelling him to do so. But it’s not. It’s about a broad pattern of official misconduct on the Mayor’s part, one that cannot be addressed save by removing him from office, and Leahan knows that. The effort to recall the mayor is not sponsored by the committee working for a community rights ordinance. Several committee members have decided to participate in the recall effort, along with many other community members who are not involved with or interested in the the committee or the ordinance and are working to recall the mayor for reasons including his bad relationship with local farmers and acequias, his vote for beer sales at a local ball park, his neglect of the barrios of this city, etc. It is unfortunate that Ms. Leahan, who styles herself “an election integrity activist,” is now attempting to obstruct the democratic process of petitioning for a recall election.. I would not have expected that, but, obviously, people change.
Regarding the above comments by Lee Einer, well, let’s just allow the actual record to speak for itself. Copy and paste this link into your browser window, go to approximately 55:34, and view the public input that I gave at tonight’s Las Vegas City Council meeting (like we have nothing better to do, right?).
Okay, I’m done troll-feeding now. I promise.
The link did not show up in my above post. I’ll try again:
If we live in a true “democracy” then it is a fallacy to say that it is “illegal” for people to stand up for their rights when they feel intimidated by their government. Laws are written and changed constantly by monied people who use their influence to get what they want. The words legal and illegal are used to confound and confuse people who have been intimidated into believing that whatever an authority says is “right”. It is like giving up our right to think for ourselves
and setting an example for our children that they do not have the right to challenge what they feel is unjust. This is not about words like legal and illegal, it is about our right to help change how industry and government interact with us, and demand our rights to a just, and healthy environment. Is it illegal to know that we need clean water to drink, and clean air to breathe? It is illegal to challenge someone who is showing disrespect to the people who elected him and is abusing the city charter rules? Is it illegal to stand up for yourself and your children’s lives? We are losing our rights and being intimidated into believing we have to consent to our own destruction. We have the duty and the right to believe we can make changes that will take us off this path to destruction, and not compromise our right to a healthy environment for all. We are attempting to change unjust laws with the tools provided for us to use. We followed due process in getting a Community Rights Ordinance passed for the city, and expect the elected officials to honor that same processes. We are not trying to break the law, but to amend it, as has happened in the past with slavery and women’s rights among others.
As stated so clearly in the these words:
Lincoln’s First Inaugural;
“This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary
of the existing government, they can exercise their constitutional right of amending it, or their revolutionary
right to dismember or overthrow it.”
Declaration of Independence
Unanimously passed by the Congress of the thirteen united states of America
We hold these truths that all men are created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving their just powers from the consent of the governed,-That whenever
any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to
institute new Government, laying its foundation on such principles and organizing its power in such form, as to them
shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long
established should not be changed for light and transient causes; and accordingly all experience hath shewn, that
mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to
which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object
evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government,
and to provide new Guards for their future security.