Little Mora County rolled the legal dice against a Goliath-sized industry opponent and lost.
A federal judge has ruled that an oil and gas drilling ban adopted by the mostly rural northeastern New Mexico county is unconstitutional and invalid.
Mora County isn’t the first local jurisdiction to impose restrictions on such activities with the goal of protecting the environment, but U.S. District Judge James O. Browning of Albuquerque said its ordinance went too far.
In a 199-page ruling issued Monday, he said the ordinance violated the First Amendment by “chilling” protected activities by corporations. He also found the ordinance violates state law, and that the county lacks the authority to enforce it on state land.
The ordinance grew out of concerns for protecting land and water after oil and gas companies in recent years leased mineral rights for more than 30,000 acres in Mora County. Residents became especially worried about potential water pollution from hydraulic fracturing, or “fracking,” a drilling technique in which pressurized fluids are used to crack open underground rock formations and release oil and gas.
Neighboring San Miguel County has approved land use regulations similar to rules adopted a few years ago by Santa Fe County that restrict oil and gas development but don’t ban it. And Mora County commissioners had been working to create restrictive oil and gas regulations similar to Santa Fe County’s when a group began pushing for an outright ban in Mora County.
Two of the three Mora County commissioners in 2013 approved the Mora Community Water Rights and Self-Governance Act, which included the ban on oil and gas drilling. Commissioner Paula Garcia voted against it, worried the county would be sued over the measure.
Within a few months, Mora County was, in fact, sued by SWEPI, a subsidiary of Royal Dutch Shell, as well as by two private landowners.
The Mora land grant association — La Merced de Santa Gertrudis de lo de Mora — joined the lawsuit in support of the ban on oil and gas drilling.
New York recently became the first state to ban fracking, although hefty zoning regulations already were in place that left much of the state’s natural gas untouchable. The New York high court in 2014 upheld the right of towns to regulate oil and gas extraction through land use zoning.
Some community rights organizers said Mora County’s ordinance was too far-reaching in its attempt to rein in corporations. “It was a fantasy,” said Robin Collier, a longtime community activist from Taos. “I can’t understand how anyone reading that ordinance could have supported it.”
The Mora County “community rights” ordinance, as well as versions adopted by local governments elsewhere in the country, was crafted by attorney Thomas Linzey of the Community Environmental Legal Defense Fund in Pennsylvania to challenge the U.S. Supreme Court’s ruling a few years ago that corporations have the same rights as people.
Browning found that the ordinance went far beyond the county’s historical lawmaking “just to deprive corporations of their rights.”
But in one part of his ruling, he also wrote that SWEPI couldn’t make the case that it was a disadvantaged class suffering a “history of oppression.”
“It may be argued that hippies, the mentally disabled and homosexuals have been subject to a history of discrimination and oppression, but such a description cannot be said of corporations,” Browning wrote. “While corporations are persons for constitutional purposes, they still are not real human beings, deserving of respect and dignity. Corporations are often the most powerful lobbyers in Washington, D.C., and in state capitals across the nation.”
County Commissioner John Olivas and Kathleen Dudley, who ran the nonprofit Drilling Mora County in the village of Ocate, had led the push for adoption of the ordinance, saying an outright ban on oil and gas drilling was needed to push back against the power of the industry.
“We intrinsically understood that we must challenge unjust laws that give corporations more rights than those who live within their community,” said Dudley, who currently isn’t living in Mora County. “This basic tenet must be changed in order for there to be justice.”
Olivas, who lost his bid for re-election last year, did not respond to emails and messages seeking for comment on the judge’s ruling.
Meanwhile, Senate Bill 184, introduced in the state Legislature, seeks to take away severance tax bonds from counties that adopt ordinances that increase the cost of oil and gas production or coal mining by more than 25 percent.
Contact Staci Matlock at 986-3055 or firstname.lastname@example.org. Follow her on Twitter @stacimatlock.