Commentary By KAY MATTHEWS
The news is out: Judge James O. Browning invalidated the Mora County Community Rights Ordinance (CRO) that banned oil and gas development in a 199 page decision issued in District Court on January 19. The decision, which found that the Ordinance violates the Supremacy Clause of the Constitution, the First Amendment, and conflicts with federal and state law, did not completely shut the door on the county’s prospects, however. The judge acknowledged that Mora County has a legitimate interest in enacting an ordinance to protect its land and water, noting that state law does not “preempt the entire oil and gas field” and there is “room for concurrent” regulation by Mora County. “If the Defendants had merely regulated oil-and-gas production in Mora County, those regulations may not conflict with state law, even if they were stricter than state law.”
Those are validating words for the folks in Mora County who favored—and were in the process of formulating—strict land use code and zoning regulations, similar to those enacted in Santa Fe and San Miguel counties. By implementing the ban the CRO proponents took the absolutist position that only a “radical” approach that works towards “federal constitutional change” is worth doing. Accepting anything less is a moral cop-out that, as some have actually charged, makes one a “shill” for the industry. The CRO was pushed forward by former County Commissioner John Olivas, in conjunction with the Community Environmental Legal Defense Fund (CELDF), a Pennsylvania-based environmental organization that works to ban factory farms and oil and gas development, particularly that of hydraulic fracturing.
But the adoption of the CRO was precipitous, without a thorough analysis of the legal, financial, and political ramifications. La Jicarita addressed some of these ramifications in previous articles we published. In a report I wrote in June of 2014 I noted that land use attorney Lora Lucero, who assisted Mora County in drafting its first comprehensive land use plan and development regulations back in the mid-1990s, pointed out that asserting local self-governance can have some unintended consequences. Cities and counties that enact local self-governance could choose to opt out of other kinds of state or federal regulations and laws that provide necessary protection, or even enact laws that are discriminatory. The Sagebrush Rebellion and Wise Use movements come to mind, as well as other conservative efforts to limit environmental protections.
Judge Browning referenced these same consequences in the CRO’s claim that no one can challenge it: “The consequences of such an outcome could be devastating to the union as the nation has known it since the Civil War. Some counties could prohibit speech on certain viewpoints. Others could deny basic rights to members of certain racial ethnicities. . . . The Constitution would be applied in a cookie-cutter fashion across the United States with such inconsistency from place-to-place that it would cease to be a Constitution of the United States at all.”
In another La Jicarita article Matt Huber, a professor of geography at Syracuse University, cautions that the “anti-fractivist” movement often descends into a defense of the “commons”—local landscapes and resources—that fails to acknowledge the shift to some other “dirty fossil fuel” like coal, one of the other extant energy sources that can currently support our consumptive needs. A recent article in High Country News, “Where Can We Say ‘Yes’ to Oil and Gas?”, also addresses a division within communities fighting the fracking boom: should we “sacrifice” certain zones to the industry in exchange for sparing more sensitive areas that are in greater need of protection or take a hardline “no” to any oil and gas development (which, may ultimately be an acceptable “yes”). Author Sarah Gilman reveals some irony in that dichotomy when she quotes a Utah resident who lives near a sacrifice zone in the Uinta Basin: “If you want a sacrifice zone, move it to Boulder [Colorado]. Let’s have big money fight big money and see who comes out the winner.”
It’s always about money. Huber’s discussion of the “commons” is within the context of capitalist consumption. Until we can “organize for completely different social relations around how energy is produced” we will continue to fall into the distractive arguments about what or whose commons is more worthwhile or what kind of dirty energy is tolerable. “Private, for-profit energy production (guided by money and shareholder value) is taking the planet to the brink, and it is clear that we require a more collective and democratic approach to energy provision.”
In situations where we need to develop immediate strategies that are workable, it’s important that they, too, be democratic. I think the main issue in Mora, as I said in a commentary soon after the ban was enacted in May of 2013, is a disconnect between those who believe they are working for “the greater good,” despite the ramifications, and those who work on the same issue within a specific location and constituency. While their goal in this case is ultimately the same—to safeguard lives and resources while transitioning from fossil fuels to clean energy—it is ultimately up to the folks on the ground who have to live with the consequences to determine the best strategies for their community. Clearly the CEDLF strategy was not workable or in the best interests of the county. The commissioners can now go back to their constituents and work to find a better way to protect the land, water, and people of Mora County. Commissioner Paula Garcia told La Jicarita that the county will release an official response to the court’s decision; we will post it as soon as it’s available.