Sunday, February 1, 2015
As expected, the United States District Court for the District of New Mexico, struck down Mora County, New Mexico's ban on hydraulic fracturing. In the case styled SWEPI, LP v. Mora County, New Mexico, the court's 199-page opinion on SWEPI's Motion for Partial Judgement on the Pleadings did not rule in SWEPI's favor on all matters, but comprehensively and completely rejected the notion, advanced by the defendants, that local governments could supersede state and federal law, as well as the attack on the established principle that corporations do not hold rights in the United States. Although I have not been able to digest the entire opinion, for obvious reasons, the court delivered a well-reasoned opinion that strikes another blow to the Community Environmental Legal Defense Fund's (CELDF) effort to advance "novel" legal arguments to block a variety of Locally Undesirable Land Uses (LULUs).
CELDF advances "Rights-Based" ordinances that assert the rights of local governments to override state and federal law. The group also opposes Dillon's Rule by advancing an incorrect understanding of Home Rule. For a more thorough and nuanced understanding of Dillon's Rule and Home Rule, see my monograph, written for the Brookings Institute.
In brief, the court granted the Motion in part and denied it in part, and invalidated the Ordinance. SWEPI, LP has standing to bring each of its claims, because it has suffered an injury in fact. Because the Mora County has already enacted the Ordinance, andbecause SWEPI, LP would suffer harm if the Court delayed considering its claims, each of SWEPI, LP‟s claims are ripe, except for its claim under the Takings Clause. Because SWEPI, LP has not sought just compensation through a state inverse condemnation action, its takings claim is not ripe. SWEPI, LP may bring its claim under the Supremacy Clause, because it could bring independent claims, through 42 U.S.C. § 1983, under the constitutional provisions that it asserts trumps the Ordinance. Additionally, the Ordinance violates the Supremacy Clause, because it conflicts with federal law. The Ordinance does not, however, violate SWEPI, LP‟s substantive due-process rights or the Equal Protection Clause, because the Defendants had a legitimate state interest for enacting the Ordinance. The Ordinance violates the First Amendment by chilling protected First Amendment conduct. Because the Defendants lack the authority to enforce zoning laws on New Mexico state lands, they may not enforce the Ordinance on state lands. Also, because there is room for concurrent jurisdiction between state and local law, New Mexico state law does not preempt the entire oil-and-gas production field. The Ordinance conflicts, however,with state law by prohibiting activities that state law permits: the production and extraction of oil and gas. Finally, the invalid provisions are not severable from the valid provisions, making the Ordinance, in its entirety, invalid.
The court, therefore, concurred with my assertion, in "Local Regulation of Hydraulic Fracturing", 117 W.Va. L. Rev 593 (2014), that a ban is distinguishable from regulation of an activity. New York remains the outlier in this regard. Also, as argued in that article, the court reaffirms that local governments hold concurrent jurisdiction with states to regulate hydraulic fracturing, but that local regulatory authority falls short of a ban. My article lists other tools, such as impact fees and reasonable setbacks, that are appropriate for local government land use regulation.
The court's rejection of a provision in CELDF's ordinance that purports to prohibit challenges to the ordinance, and which the court repeated from an earlier ruling in the SWEPI case, bears repeating hear as well:
The Ordinance, thus, appears to state that no one can challenge it, or any other
Mora County ordinance, as long as the ordinance concerns the health, safety, or
welfare of its residents. See Ordinance § 5.6. The Intervenor-Applicants‟
argument is that SWEPI, LP, cannot challenge the Ordinance‟s constitutionality,
because the Ordinance deprives SWEPI, LP, of its constitutional rights. If this
argument has validity, it would signal the end of all civil rights that the Constitution
protects. A county could pass an unconstitutional ordinance, but then say that
anyone who challenged the ordinance lacks constitutional rights to support the
challenge. The county could enforce its unconstitutional ordinance free of
constitutional restrictions, because no one could challenge the validity of the
ordinance. 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. Still others could prohibit religious practices; others
could require participation in religious services. 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
SWEPI, LP v. Mora County (page 133), citing SWEPI, LP v. Mora Cnty., 2014 WL 6983288, at *48.
Rights-based ordinances are being passed across the country to attempt to ban land application of biosolids, hydraulic fracturing and other LULUs. In addition, some communities are using rights-based ordinances to promote "food sovereignty". The latest ruling in SWEPI, LP v. Mora County provides more evidence that this approach is not only wrong, but can prove to be devastating to the enacting localities. The fact that many of these localities are poor, meaning that they must turn to CELDF instead of costly, but well-qualified, consultants, exacerbates environmental justice concerns.
Meanwhile, Conestoga Township, PA recently rejected a rights-based ordinance. One supervisor offered an eloquent rationale for his rejection of the ordinance. More local governments should follow the Conestoga example.