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N.M. Town Targets ‘Fracking’

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SANTA FE – Its own lawyer calls the move unconstitutional; its insurer says it may not be able to offer coverage for a legal battle.

Despite those objections, the Las Vegas, N.M., City Council passed an ordinance targeting “fracking” that bans drilling for oil or gas within the city limits or the Las Vegas watershed.

The ordinance, crafted with the help of a Pennsylvania-based nonprofit, includes several provocative provisions, including a section that grants “inalienable and fundamental rights to exist” to ecosystems and “natural communities” like wetlands, streams, rivers and aquifers.

The ordinance also states that corporations violating the ordinance “shall not have the rights of persons” afforded by the U.S. or New Mexico constitutions, that it supersedes state or federal permits or licenses and that state and federal law can’t be used to preempt or challenge the local measure.

Transporting waste water, chemicals or byproducts from oil or gas drilling through Las Vegas would be illegal, if the ordinance stands.

The council approved the measure – which doesn’t specifically mention hydraulic fracturing operations used to extract shale gas but clearly targets “fracking” – in a 3-1 vote Monday night.

According to KUNM radio, advocates are working on a similar ordinance for Santa Fe County.

Councilor Andy Feldman was the leading sponsor of the Las Vegas ordinance, which was drafted by The Community Environmental Legal Defense Fund of Mercerberg, Pa.

Feldman said the ordinance is part of a grassroots movement around the country, with about 140 communities enacting similar laws, intended to challenge status quo law on drilling and get the issues before the U.S. Supreme Court.

“It’s a new area of law and we’re sort of testing the waters,” said Feldman, a geologist who teaches at Luna Community College in Las Vegas.

Drilling within the Las Vegas city limits is not likely, he acknowledged. But he said the measure is in many ways a “statement of solidarity” with residents of nearby Mora County, where the Drilling Mora County group is organizing to fight off potential drilling operations. “It’s also to say we don’t want this in our area,” Feldman said.

City Attorney Dave Romero told the council before its Monday vote that the ordinance is unconstitutional and could cost the city millions if it is sued. He said this week he might challenge the ordinance in court himself.

“If I see a substantial threat to the city, and after discussing it with my bosses, the City Council, the mayor, the city manager… I leave that option open,” Romero said.

“It’s not something I want to do because I believe we can work it out,” he added.

Romero said he understands the ordinance is intended to send a message against fracking in northeast New Mexico and in favor of protecting scarce area water supplies from potential pollution.

But the measure also attacks “the fundamental structure of constitutional law as we know it,” Romero said.

Before the council vote, the New Mexico Municipal League informed Las Vegas city government that defending the ordinance “might be beyond the scope” of the liability insurance the league provides.

“It’s just fraught with all kinds of problems,” said Municipal League attorney Randy Van Vleck. Among the provisions he cited was one that says the city or any Las Vegas resident can enforce the ordinance “through an action in equity brought in any court of competent jurisdiction” and can seek damages. “That’s not the way you enforce city ordinances,” Van Vleck said.

‘Scare tactics’

Feldman said he disagrees with the legal “scare tactics” against the ordinance but is willing to work on amendments.

“I’m very passionate about this,” he said. “As a geologist, I look at what we’re doing as a species … It’s gotten to the point where corporations are running the show, and I just believe that’s wrong. We just need a grassroots effort to turn things around.”

“We should be stewards instead of exploiters,” he added.

Fracking involves injecting large volumes of water and sand laced with chemicals into shale formations to break apart the rock and unlock reservoirs of oil and gas.

The industry maintains it is safe, while critics and some residents who live near fracking sites say it has polluted groundwater. The federal Environmental Protection Agency, in December, issued a draft finding that fracking may be to blame for groundwater pollution in Wyoming.

The Las Vegas ordinance is called the Las Vegas Community Bill of Rights and Local Self-Governance Ordinance. Among the rights asserted in the ordinance are rights to water and to water for agriculture, “rights of natural communities,” “right to a sustainable energy future,” and the right to self-government.

It extends the ban on drilling to the city watershed along the Gallinas River. Also, in an apparent reference to fracking, it makes it illegal for a corporation to import water “or any other substance” to be used in oil or gas extraction.

The ordinance suspends the rules of the City Council for potential repeals of the ordinance. A repeal would require a unanimous vote of the council, then approval by two-thirds of city voters in a referendum.

Joining Feldman in voting for the ordinance were fellow councilors Tonita Gurule-Giron and David Romero. Voting no was Councilor Vince Howell.
— This article appeared on page A1 of the Albuquerque Journal

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