A Retrospective on the Mora County Fracking Ban*

Editor’s Note: Existing and potential oil and gas drilling in New Mexico continues to raise questions about how best to deal with the economic, health, and environmental concerns it presents. Mora County Commissioner Paula Garcia’s lengthy piece below tells the story of her county’s confrontation with the industry in its many twists and turns. The community radio station Cultural Energy KCEI 90.1 is also running an interview today, at 8 am and 5 pm, with some of the people who worked in San Miguel and Mora counties to develop land regulations to limit oil and gas drilling. If you’re not in the listening area you can access it online at http://www.culturalenergy.org/listenlinks.htm.

By Paula Garcia, Chairwoman, Mora County Commission

Abstract

Since 2013, Mora County has garnered national and international attention for being the first county in the US to enact an ordinance to ban oil and gas development, including fracking. The ordinance has been lauded as a bold move by a small, poor county to take on the powerful oil and gas industry and often has been characterized as a David v. Goliath battle. Amid debate on what would be the best strategy to protect Mora, an experimental ordinance was passed, challenged, and eventually overturned by a federal district court judge. A replacement regulatory ordinance is now in progress in Mora County. To understand the turbulent history of the ordinance that banned fracking, it is important to start with the context leading up to its enactment and to provide an account of the situation facing Mora County after the ordinance was overturned.
*Author’s Note: The ordinance has been characterized as a “fracking ban” but it prohibited all oil and gas drilling, including hydraulic fracturing or “fracking.” For purposes of this article, the term “fracking ban” will refer to the ban on all oil and gas drilling.

My position as a local community leader and as an elected official has been that oil and gas drilling, especially fracking, poses a grave risk to our water resources, both surface and ground, and that it should not be done where there is risk of water contamination. I have advocated for public policy that protects communities, land, and water from water contamination through a regulatory ordinance that has a good chance of being upheld in court. In 2012, the County Commission enacted an experimental “community rights ordinance” to ban fracking in a decision in which I was the dissenting vote. My rationale was that the ordinance was more of a statement of principles rather than an effective legal tool to protect the natural resources and communities of Mora County. In 2014, the ordinance was legally challenged by industry groups and landowners, and, in 2015, it was ruled unconstitutional by a federal district court judge.

Mora County is now developing an ordinance with an attorney who specializes in developing land use regulations that address oil and gas development. I believe that this is a responsible approach for county government. My hope is that the community members concerned about oil and gas development, including those who supported the ban that was overturned, will engage in development of a new ordinance. Going forward, I will continue to advocate for policies at the local, state, and federal levels that will better protect communities from extractive industries. Furthermore, my hope is that New Mexico will lead a transition to a clean energy future with incentives for wind, solar, and workforce development to expand opportunities for working families and provide cleaner sources of energy.

Mora County Encounters the Oil and Gas Industry

The Mora Valley has a beauty that is almost mythical with the snow-capped peaks of the Sangre de Cristo on the west, where snowmelt courses through centuries-old irrigation ditches, and the rolling grasslands on the east with antelope, livestock, and buffalo. Many of the residents of this land call this place a paradise. As much as this place is loved, most people raised in Mora who want to live here cannot afford to do so. Those who do stay in Mora County take creative and sometimes extraordinary measures to live here and raise their families. Despite the challenge of making a living here, most people in Mora County are taking the position that they prefer clean water, land, and air to industrial development related to oil and gas extraction. The people of Mora County believe that we have a pristine land and a way of life that is worth protecting, and I agree with them.

For the past several years, industry has been speculating that there is oil and gas deep within the strata of this precious land. Sometime around 2008 or perhaps earlier, Mora County was abuzz with talk about oil and gas drilling prompted by the sudden presence of “land men.” These are people who go door to door trying to convince landowners to sell or lease their mineral rights for the least amount of money possible. Residents on the east side of Mora County were suddenly the targets of companies who were determined to gain ownership of vast swaths of mineral rights or at least to get a signed lease. Land men were occupying the office of the County Clerk pouring through deeds for months. The very presence of the land men had profound ripple effects on the communities of Mora County.

At one point, in around 2009 or 2010, there was a community meeting at the school gym attended by perhaps 200-300 people, most of whom were against what seemed like the imminent arrival of the oil and gas industry into Mora County. Oil and gas industry representatives were present to convince locals of their commitment to “corporate responsibility” and of the promise of good paying jobs. Numerous people, mostly from Mora County and some from outside the county, spoke eloquently about the beauty and pristine nature of the Mora Valley and the imperative to not only protect our natural resources but to make Mora County a place that could be a model of sustainability and social justice. Along with others, I spoke at the forum and made a plea that Mora County lead toward a sustainable future rather than be a sacrifice zone for oil and gas development.

It was also around this time that the industry was taking steps to explore for oil and gas in the Galisteo Basin in Santa Fe County. I remember thinking that the industry picked the wrong place to drill in northern New Mexico. There would be opposition. Around that time, I became acquainted with people active in a group called Drilling Santa Fe and learned of the work to push Santa Fe County to develop a stringent and protective ordinance appropriate for the cultural landscapes of northern New Mexico. In contrast, the Mora County Commission at the time did not seem to have a plan for how to deal with the oil and gas issue since there was little or no discussion about it at regular commission meetings.

Getting Elected and Working on a Regulatory Ordinance

It was during this time that I began to consider running for a seat on the County Commission. Up to that point, running for office was not something I envisioned for myself, preferring to be an advocate for agriculture, local food systems, and water rights. There were two factors that prompted me to make my decision to run. One was that with my experience at the State Legislature advocating for acequias and local agriculture, I had seen first-hand the positive impact of policymakers in crafting laws that were responsive to community needs and visions for the future. It was clear to me that elected officials had a profound responsibility to care for their communities. The other factor was my concern about the lack of initiative on the oil and gas issue by the Mora County Commission at the time and I believed I could provide leadership to protect my beloved Mora.

In my campaign, I made a commitment to protect our natural resources with the most stringent policies possible. I was careful with my words, mindful that a promise to ban oil and gas would probably end in a bad court decision. While at UNM years before, I had taken a Land Use Law class and I knew something about the legal parameters county governments should generally follow in enacting land use regulations. As a candidate, my position was that the county should pass protective regulations that were legally sound. I never made a promise to ban oil and gas drilling. Such a ban was likely to be overturned in a court of law. Period.

I started my first term on January 1, 2011. County government was in crisis. There had been no manager for over a year. There were three unfinished infrastructure projects including the high-profile county complex that dominated evening news as the poster child of mismanagement and negligence. There was also a burgeoning movement to oppose oil and gas drilling. During 2011, the Commission held several information meetings with presentations from Santa Fe County, New Mexico Environmental Law Center, Earthworks Oil and Gas Accountability Project, other experts, and, to provide balance, the Secretary of the Energy, Minerals, and Natural Resources Department. In my view, the most important finding from those presentations was that state regulations appeared to be inadequate. First, the Oil Conservation Division was understaffed and seemed to rely on industry to “self-report” spills. Second, state regulations addressed “down hole” activities from drilling leaving regulation of surface impacts to local government. In one presentation from the Oil and Gas Accountability Project, Gwen Lachelt urged Mora County to have regulations in place before industry began applying for permits. Based on those presentations, Mora County was starting to get on track to develop a regulatory ordinance.

Pennsylvania Lawyer Teams Up with Locals to Ban Fracking

At the same time, a group called Drilling Mora County had been established. Initially, their leader, Kathleen Dudley, had recommended that the County connect with the New Mexico Environmental Law Center to develop an ordinance. However, she later switched gears and began to promote a different model based on work by the Community Environmental Legal Defense Fund (CELDF) and Thomas Linzey, which called for a complete ban on oil and gas development rather than the development of a regulatory ordinance. As the founder of CELDF, Linzey was a charismatic attorney who taught US history in a way that highlighted the disproportionate power of corporations and who wrote ordinances for local government that would be the antidote to corporate power. CELDF is based in Pennsylvania.

The group Drilling Mora County hosted informational meetings that were well attended. I attended Democracy School, taught by Linzey, along with about a dozen other Mora County locals, including John Olivas, who had also been elected to the Commission. I was genuinely interested in their strategy but after about three days realized that there was no silver bullet. Linzey’s strategy was to use the courts to elevate and bring attention to injustices in our system of law. There was a certain dignity to it because it was a way of questioning fundamental tenets of our system of governance in the United States and the centuries-old bias toward corporations.

Thomas Linzey believed that if enough local governments enacted his ordinances, it would create a groundswell that would eventually result in reforms to our constitution and at all levels of government. However, it wasn’t a calculated and precise legal strategy, such as those one reads about from the civil rights movement. It was more of a consciousness-raising exercise to use local governments to test his legal theories, lose his cases in the courts, and use that platform to build a movement to reverse legal doctrines of corporate personhood and empower our institutions of government to put the common good ahead of corporate interests. Again, this was and is a dignified cause. It was compelling, but it was clear that Linzey’s ordinance and method would result in years of litigation, giving him a high-profile soapbox, but Mora County would not have policies in place that would actually protect our land, water, air, and people.

As a local elected official, I had to consider both idealistic and pragmatic perspectives. Realistically, I would have three to four years to enact policy, assuming I could serve a full term. I wanted a solid and strong regulatory ordinance that would protect Mora County from the potential negative impacts of oil and gas drilling. I took the position that Mora County should enact a regulatory ordinance that was likely to be upheld. I believed that if we followed the path laid out by Thomas Linzey, we would end up in court as a test case. By the time Linzey’s strategy went through the courts, my window as a policymaker for Mora County would close. I believed that after the Linzey ordinance lost in court, which was virtually guaranteed, Mora County would be back at the drawing board.

Drilling Mora County presented their ordinance, drafted by Linzey, to the Mora County Commission in 2012. I was reluctant to support it. First, the supporters of the ordinance seemed to believe the Linzey’s ordinance would actually be a “ban.” It was not. The Linzey ordinance was intended to instigate litigation so that corporate personhood could be debated in court pleadings. I don’t believe Linzey or CELDF had any realistic expectation of winning in court. Therefore, even though the ordinance had many supporters in Mora County, I could not in good conscience be a supporter of Linzey’s methods. The ordinance seemed to be more of a statement of principles rather than a legal document that could be used as a tool to protect Mora County.

Second, while a well-intentioned and dedicated group worked with Linzey on the language, the community at large was uncertain about the actual ordinance. Most people who spoke with me were against oil and gas development in Mora. However, when I asked community members if they supported a “community bill of rights,” as Linzey calls his ordinances, they were uncertain about what that meant. There was also some mistrust or caution from some locals toward the primary spokesperson for Drilling Mora County, Kathleen Dudley. According to her bio, she was working in Mora County to “educate the people” and she was a community organizer for CELDF, Linzey’s organization.

During the latter half of 2012, the County Commission, with me as Chair, continued with informational presentations with the intent that we would work on a regulatory ordinance as an alternative to the Linzey ordinance. During this time, my position on fracking was misrepresented and distorted. By not supporting Linzey’s ordinance, I was accused of being “pro-fracking” and of being “bought and sold by industry.” An activist from outside Mora County went on a twenty-minute tirade during public comment in a commission meeting accusing me of “sedition for violating the US Constitution.” In one of the more memorable attacks, someone said I would never be forgiven, comparing me to Pontius Pilate who was responsible for crucifying Jesus Christ.

Based on the participation during public comment, the Mora County oil and gas issue was important not only to locals but to people and organizations throughout northern New Mexico. Drilling Mora County and like-minded organizations, both in Mora County and from surrounding counties, pressed hard for the Linzey ordinance, believing that a county could overturn two centuries of case law. On the other hand, there were others who advocated for a strong, legally defensible regulatory ordinance such as Concerned Citizens of Wagon Mound and Mora County, PROTECT San Miguel County, and the Las Vegas Peace and Justice Center.

Fracking Ban Enacted with Many Unanswered Questions

In 2012 Alfonso “Ford” Griego, who ran on a platform of banning fracking, was elected to the Commission. He joined with Olivas to elect the latter Chair. In April of 2013, Olivas held a Commission meeting for approval of the “Community Bill of Rights.” He had determined that the ordinance would be decided on an up or down vote and no substantive amendments could be made. I asked specifically about the article about secession and whether it could be removed. Section 11 required that Mora County consider ways to secede from other levels of government:

“Such consideration may include actions to separate the County from the other levels of government used to preempt, amend, alter, or overturn the provisions of this Ordinance or other levels of government used to intimidate the people of Mora County or their elected officials.”

When I asked the chair why this section was necessary, he deferred to Kathleen Dudley, who stated that “secession is a legitimate political strategy.” Perhaps it is. But this document was being enacted on behalf of all the citizens of Mora County and I doubted whether they had been involved in such a strategic decision.

After the ordinance was enacted on a 2-1 vote, I often challenged Linzey on his potential litigation strategy—anticipating the county would be sued—because it seemed that there was not a robust legal defense other than suggesting that there should be a better system of law than the one we have now. There were sections of the ordinance that prohibited oil and gas extraction, as would be expected by an ordinance that bans fracking. However, there were other sections that went beyond the ban on oil and gas drilling. Another section rescinded corporate personhood from corporations who violate the ordinance:

“Corporations in violation of the prohibitions enacted by this ordinance, or seeking to engage in activities prohibited by this ordinance, shall not have the rights of persons afforded by the United States and New Mexico Constitutions, nor shall those corporations be afforded rights under the 1^st or 5^th amendments to the United States Constitution or corresponding sections of the New Mexico Constitution, nor shall those corporations be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the New Mexico Constitution.”

As mentioned previously, I do not believe that corporations are persons, but that belief puts me at odds with the US Supreme Court. In reading this section, it seemed like the ordinance was seeking to provoke litigation about corporate personhood, which is quite a different battle to be waged by Mora County. Local supporters of the ordinance wanted to ban fracking. However, the ordinance for which they advocated was intended to be a test case on corporate personhood.

I specifically asked Linzey why this section was included as it was above and beyond the objective of banning fracking. I also knew that an ordinance impacting constitutional rights, agreeable or not, would provoke civil rights claims by the oil and gas industry. If the industry would prevail on a civil rights claim, the county could be responsible for the plaintiff’s attorney’s fees. It is an absurd notion that a poor county would have to pay a corporation’s attorney’s fees, but it was a risk that could not be ignored. Linzey chose to ignore it. He was not responsible for Mora County’s budget. His only response was that corporate personhood had to be challenged.

Mora County Sued Two Times, Ordinance Ruled Unconstitutional

As expected, Mora County was sued by oil and gas corporations and landowners. The first lawsuit was filed in November 2013 by the Independent Petroleum Association, Mary Vermillion, Harvey Yates, et al. who were represented by the Mountain States Legal Foundation, a think tank that zealously fights any encroachment on private property rights. A second lawsuit was filed against Mora County by SWEPI, a corporation somehow related to Royal Dutch Shell. Linzey had certainly gotten the legal battle he so desired. In a show of solidarity, the Mora Land Grant and one of the members, Jacobo Pacheco, a prominent local business owner, requested to be granted status as intervenors in the SWEPI lawsuit. The judge on the case granted the request.

The SWEPI complaint was filed in May 2014. By January 2015, a federal district judge issued a ruling. In his decision, which was 199 pages, Judge Browning ruled that the ordinance was unconstitutional. The decision states that the Mora County ordinance violated the Supremacy Clause and the First Amendment rights of SWEPI, which invalidated certain provisions of the ordinance. The ruling that the ordinance was unconstitutional was not a surprise. Interestingly, parts of his decision affirmed local government involvement in oil and gas policymaking. In his decision, Browning notes that Mora County had a legitimate state interest in enacting the ordinance and therefore did not violate the substantive due process rights of SWEPI. He also did not agree with SWEPI that the ordinance violated the Equal Protection Clause. And, although the ordinance violated state law in some respects, the decision also noted that state law has not occupied the field in oil and gas regulation and therefore the state and the county can have concurrent jurisdiction. Ultimately, the Browning ruling invalidated the ordinance in its entirety because the valid provisions were not severable from the invalid provisions.

After the Browning decision, Mora County had to decide whether to appeal the decision. Because the ordinance provoked litigation on the First Amendment rights of corporations, the county could be required to pay the attorney’s fees of the plaintiffs. Mora County had two options: 1) not appeal the Browning decision in exchange for SWEPI not demanding attorney’s fees, or 2) appeal to the 10^th Circuit Court of Appeals.

The Browning decision was rendered in January 2015 after John Olivas had lost reelection. There was a new Commissioner in his place, George Trujillo. I had won re-election for a second term and was elected Chair. With the new makeup in the Commission, there was not as much of an appetite for continued litigation in pursuit of Linzey’s platform. Considering the risk of having to pay attorney’s fees and a general sentiment that continued litigation was not in the best interest of Mora County, the Commission decided not to appeal and therefore reached an agreement with the plaintiffs such that they would not make a demand for attorney’s fees.

Back to the Drawing Board: Working on a Regulatory Ordinance

After the litigation ended with a settlement between the parties, Mora County was left with no ordinance. Divisions and splits caused by differing opinions over the ordinance left many people with a feeling of loss. The energy and creativity of the activists in support of the community rights ordinance was channeled into other projects that have benefitted the community but there seemed to be little interest in working on an ordinance to replace the one overturned by Judge Browning.

In late 2015, the Mora County Commission enacted a temporary moratorium to allow for time to develop a regulatory ordinance. Work sessions were held to build upon the work done in previous years. One presentation was from a geologist from New Mexico Tech, Bureau of Geology and Mineral Resources, to share a report entitled “The Natural Gas Potential for North Central New Mexico: Mora, Taos, and Colfax Counties.” The Commission also heard presentations from PROTECT San Miguel, the citizen’s group that advocated for the regulatory ordinance adopted by San Miguel County and from Earthworks Oil and Gas Accountability Project. Working on a regulatory ordinance has not generated as much interest as the ban did back in 2012-2014. The grassroots activist that launched the community rights ordinance has not transferred to an effort to enact a regulatory ordinance in the void left by the Browning decision. In the next few months, the people of Mora will have another opportunity to participate in the development of a new ordinance.

Recently, in 2018, the Mora County Commission extended the temporary moratorium and has made progress on a draft ordinance. The Mora County Commission contracted with Dr. Robert Freilich to solicit public input and develop a draft for review by the Commission and the public. Freilich is a nationally renowned attorney specializing in land use law with specific expertise in oil and gas regulation by local governments. Freilich’s firm developed the ordinances for Santa Fe and San Miguel counties, both of which are well known for providing rigorous protections and for being legally sound. The tentative timeline for enactment of the ordinance is June 2018 with a public comment and public meetings to be held during the months of February through May.

Pressure on County Government and the Need for Better State and Federal Laws

No one knows when or if oil and gas drilling will take place in Mora County. Industry interest in Mora County will depend on the price of oil and gas. During the past few years, with lower prices, interest in the area for drilling has waned. If prices trend upward, there may come a time when the oil and gas industry will pursue business in Mora County. With the regulatory ordinance enacted, Mora County will have some protections in place. I am advocating that the county should use zoning to delineate areas that are inappropriate for oil and gas drilling and that the industry be held accountable for the cost of their impacts. My term will come to an end in December 2018 and my hope is that the ordinance will provide county government with some tools needed to protect the safety, health, and well-being of the people and places in the county.

Counties that are facing oil and gas development will continue to face challenges related to oil and gas drilling and fracking. Although entire countries, such as France, Germany and Ireland, have banned fracking, the ability of local governments in New Mexico and in the United States to do the same is still limited by the existing legal framework. County commissions will continue to face pressure to ban fracking while their legal powers to do so are severely limited.

County elected officials are faced with intense scrutiny and a huge public outcry about the impacts of fracking. Around the country, real life testimonials about oil rigs being drilled 150 feet from schools and homes, petrochemical fumes giving children nosebleeds, methane-laced tap water being lit on fire have contributed to a sense of urgency among the people who are faced with oil and gas development. Industry will maintain that there is no direct proof that their operations are the cause of these problems. While studies may not always make a direct link to a specific incident of drilling to a specific incident of contamination, some studies document a correlation between the proximity of drilling activity and the probability of water contamination. The concerns of people about contamination are justifiable.

Why are counties on the front line of this struggle? There is a gaping hole in the governance of our natural resources in relation to oil and gas development and counties are being put in a difficult position. Some of my constituents in Mora County feel that the federal and state governments have should play a greater role to provide a reasonable framework to protect local communities. I share their concerns as I have observed that local governments are left to fend for themselves in dealing with giants of the oil and gas industry who are determined to minimize any regulation of any kind.

The federal government has exempted the oil and gas industry from major federal environmental laws. The state legislature has been unable to enact even the most modest and reasonable changes to the Oil and Gas Act, which has not been updated since the 1930s. In New Mexico, only a handful of inspectors are available to monitor over a hundred thousand wells in New Mexico and industry is trusted to self-regulate and voluntarily report spills to the state based on their own “visual” inspections. For state lawmakers, reforms to the Oil and Gas Act may be challenging in part because the state’s budget is highly dependent on oil and gas revenue.

Risk of Preemption of County Land Use Regulations

Because industry lobbyists have succeeded in keeping the bar low at the state and federal levels, counties are faced with enacting policies to protect the health, safety, and welfare of their citizens. In recent years, industry has proposed another layer of deregulation. In 2016, there were several bills introduced in the New Mexico State Legislature that would have preempted county government from enacting any rules and regulations concerning oil and gas development. During that session, counties, environmental groups, and community groups rallied to stop the preemption bill. I attended every hearing and provided testimony as a county official. One of the bills passed the House and was narrowly defeated in a Senate committee. This should be a wake-up call for the people of New Mexico that the powers held by counties currently provide a critically important level of protection that could be at risk if industry lobbyists can sway legislators to strip the powers of local governments to regulate oil and gas.

The regulation of oil and gas is too important to be left primarily at the level of county government. While I strongly maintain that counties should each have their own powers to enact laws at the local level, I also believe that the federal and state levels of government should be doing more to protect our local communities. I encourage people who care about protecting land and water to continue to stand up to protect their communities, and I also encourage them to direct their attention not only to their county government but also to the New Mexico State Legislature and the United States Congress.

The Future: Protect Our Water and Work Toward a Clean Energy Future

My life’s work has been to protect water that flows through acequias and sustains family farms throughout rural New Mexico. As a community leader, I have served an organization that has contributed to a movement to protect water for over two decades. For years, I have maintained that fracking poses a grave threat to our precious and finite water resources and that it should not be allowed wherever there is risk of contamination.

I firmly believe that enacting a strong regulatory ordinance in Mora County is a step in the right direction and that it is the responsible approach for county government. I hope that the growing movement to challenge the fossil fuel industry will achieve lasting changes that will stabilize our climate, transition our economy toward renewable energy, and protect our land, water, and air as well as the health of our families and communities. I am committed to being part of that movement.

Mora County needs people who care about our land, water, and communities to stay engaged to develop a strong ordinance and to remain vigilant so that the protections of the ordinance are rigorously implemented. The energy and effort that was invested in enacting a ban should be sustained for a strong regulatory ordinance, because that is the best that Mora County can do at this time in history. Furthermore, there is much more that must be done as part of a broader movement:

1. Resist any attempt by industry to preempt local government from enacting land use regulations regarding oil and gas development.
2. Enact and rigorously implement strict land use regulations at the county level that protect communities, surface water such as bodies of water, streams, rivers, acequias, and groundwater, as well as environmentally and culturally sensitive areas. Communities need to mobilize to elect county officials who will keep strong regulations in place.
3. Advocate to strengthen state laws that regulate oil and gas so that permitting, inspection, and enforcement functions are property staffed and funded and to restore federal regulation of oil and gas drilling by making it subject to environmental laws such as the Clean Drinking Water Act.
4. Accelerate the transition to a clean energy future with incentives for renewable energy and workforce development for solar and wind energy jobs.

As Arundhati Roy said, “Another world is not only possible, she is on her way. On a quiet day, I can hear her breathing.”