Community Bill of Rights Bans Fracking
Kathleen Dudley
April 4, 2012
A victory for nature, human rights and democracy was celebrated in Las Vegas, New Mexico, on April 2, when the city council passed an historic law that exerts protective rights to all residents, natural communities, ecosystems and its watersheds—and bans fracking within the City of Las Vegas.
The process to enact the Las Vegas Community Water Rights and Local Self-Government Ordinance has proven to be a roller coaster ride from one council meeting to another, beginning in February. Opposition was voiced extensively by the Las Vegas city administration at the 11th hour, with both the mayor and city attorney claiming illegalities and predicting lawsuits, as they tried to equate balancing budgets and guarding the city from legal action with protecting life and nature.
The new law for the city of Las Vegas is not just a fracking ordinance, as the media have portrayed it, but asserts a basic community bill of rights, declaring the right of all residents, natural communities and ecosystems to water from natural sources, the right of residents to unpolluted water for use in agriculture, the rights of natural ecosystems to exist and flourish, and the rights of residents to protect their environment by enforcing these rights.
Also enumerated is the right to a sustainable energy future and the right to local self-government. To protect these rights, the law would make it unlawful for corporations to “engage in the extraction of oil, natural gas, or other hydrocarbons within the City of Las Vegas and its watersheds.” It legislates that corporations shall not have the rights of persons afforded by the U.S. and N.M. constitutions, nor afforded rights under the 1st or 5th Amendments to the United States Constitution or corresponding sections of the New Mexico Constitution, nor protection under the commerce or contracts clauses of the constitutions.
Las Vegas is not new to the struggle over the lack of abundant clean water for citizens. Its drinking water supplies depend upon snow and rainfall, and the recent drought has diminished its available water (mostly in Gallenas watershed and Storey Lake Reservoir) to just a matter of days for the residents, according to the Las Vegas Optic reports on water for the city.
The arrival of interested oil companies in San Miguel County prompted the city council in 2011 to unanimously pass a temporary ban on drilling through a moratorium. Even without leases within the city limits, they agreed on the necessity to take this strong stand to show their solidarity with the county and neighboring counties, whose oil and gas leases total over a half-million acres. Many Vegas citizens understand the impact drilling in the county could have on their own fragile ecosystem should drilling begin in the nearby Las Vegas basin. Recent EPA water test results from Pavillion, Wyo. strongly link aquifer contamination to natural gas fracking and drilling.
The unsustainable extraction of fossil fuels will not stop until communities take a stand to change the very laws that were “established to protect production and commerce at all costs,” says Thomas Linzey, senior legal counsel for Community Environmental Legal Defense Fund (CELDF), whose nonprofit law group works with citizens to help protect their communities from corporate threats.
The current regulatory structure, coupled with the 2005 U.S. Energy Bill, gives the oil industry a free ride by allowing drilling and fracking without liability to the corporations for the consequences of their contamination. They are exempt from the Clean Water Act and the Safe Drinking Water Act, for example. When the New Mexico Oil Conservation Division issues permits for drilling in San Miguel County, industry will not only be legally “permitted,” but above the law should any harm result from their drilling.
“The permeable nature of the rock would lead to aquifer contamination in time,” stated Councilor Andrew Feldman, a geologist, during a presentation about the Las Vegas basin. Under this system of regulatory law neither the community nor the individual can say “no.” In fact, they can do nothing to protect their communities or families from the harm by the oil companies due to the rights afforded to corporations through the Constitution and especially by court interpretation of these laws.
This system of law that gives rights to corporations to do harm within municipal communities is the very reason Las Vegas citizens began working with CELDF. Las Vegas activist Miguel Pacheco took the lead, along with the late civil rights attorney Larry Hill, to refine and customize the CELDF Pittsburgh Ordinance to reflect the regional issues that define the city of Las Vegas and its culture. “This ordinance was put together very finely to protect all life—it’s defensible and it’s unique. And it’s revolutionary,” said Pacheco. “This is a time we have to stand up and take a stand. This is not going to be easy, but it is the right thing to do.”
Once the ordinance was fully vetted by CELDF, Pacheco approached both Mayor Alfonso Ortiz and Councilman Feldman for their review and support. “This ordinance is a new area of law, and as such it draws its authority and power from the federal and state constitutions and the Declaration of Independence,” Feldman said when presenting his support and sponsorship of this ordinance at the city council meeting. “Governments derive their just powers from the consent of the governed,” he added.
During the February meeting, Mayor Ortiz spoke out strongly in support of the ordinance: “This ordinance sends out a message that we really care about our environment and that water and our environment mean more to the people who live here than money or oil. I support this, and support bringing it to a final vote.” It was a position from which he would retreat between February and April.
City Attorney David Romero took grave issue with this ordinance during the April meeting, stating that he had “serious, serious concerns about the constitutionality and the legality of this document. It violates, in my opinion, the Constitution of the U.S. and the Constitution of New Mexico. . . . 14th and 5th Amendments, which provide due process and equal protection, and prevents government from taking any rights away without due process or without just compensation.”
In response, Feldman stated, “This ordinance is not illegal, nor is it unconstitutional. The ordinance is a frontal and direct challenge to existing laws, and attorneys are sworn to uphold that [existing] law, and so they reject it by calling it illegal and unconstitutional. Passage of the ordinance, however, is not a legal question but a political one. We can adhere to existing law and leave ourselves open to fracking and loss of our water, or we can seek to change the law to prevent those damages from happening to our precious water resources.”
Attorney Romero objected: “And there is a second part—community rights—bill of rights. And that section is just out of bounds with the laws, as we know it. This ordinance extends rights to people who have never had them before.” Many citizens found Romero’s reasoning astonishing. After all, the rights-based Suffragist and Abolitionist movements pushed back against similarly unjust laws under constitutions that did not afford them rights to vote or to be considered “persons” according to the law of the land.
Attorney Romero at one point in the meeting threatened to sue the city for its actions if the council voted to pass the ordinance. “I feel so strongly about this that if it is passed by the council, under my oath as city attorney, I may have to challenge the issue myself as part of my duties,” he said. But before he was able to complete his sentence, the standing-room-only crowd drowned out his words by shouting “Resign, resign, resign!”
Mayor Ortiz backpedaled from his strong support at the February and March meetings as he asserted his preferences for more lengthy review and the modifications as presented by attorney Romero. “I think the majority of the people are in favor of it, but there’s little flaws, little clues in there that can be read in different ways,” he said.
The discussion was contentious, with attorney Romero clearly representing his client, the municipal corporation of the city of Las Vegas, rather than the residents of the city. At one point his voice crackled as he said, “Yes! It’s an unpopular position to stand here in front of you with nearly everyone disagreeing with me, but as your attorney it is my duty to advise the council.”
At a time of such contention, some expected to hear opposition in the crowd, but with few exceptions, the room was strongly in favor of the ordinance. A rather small subdued group who appeared to be representatives of the oil companies sat furiously taking notes from the second row.
Despite the mayor and city attorney’s insistence upon slowing down and postponing the vote, the council voted 3-1 to adopt of the ordinance. Voting in favor were Andrew Feldman, Tonita Gurule-Giron and David Romero. (The mayor only votes in the event of a tie.) After the meeting, as Gurule-Giron was leaving, she stated, “It was the right thing to do.” Gurule-Giron is running for mayor against Ortiz in an April 17 runoff. Feldman will be stepping down as councilman at the end of April. The lone vote against came from new councilman Vince Howell.
Immediately upon the passage of the ordinance, the New Mexico Oil and Gas Association informed the city attorney the group would file suit against the city—a move that surprised few, given that this is the first community in the Southwest to stand boldly for the rights of citizens and nature against those of corporations. NMOGA’s hope is no doubt to frighten the city of Las Vegas and other communities into submission in order to keep this movement from spreading like wildfire. Attorney Romero indicated that the municipality’s insurer may pull its insurance coverage. The next day the mayor, at a citizen meeting, threatened to find a way to not sign the ordinance, which according to its own terms, becomes law in five days after the vote.
This new voice for rights for the people and nature challenges 200 years of entrenched government law and court interpretation that has given corporations personhood as well as carte blanche to drill at will. Corporate power has been so profound that even with the threat of the contamination and depletion of communities’ water, there has been no legal recourse the citizens could use within the current structure of law to stop industry from drilling.
“We’re in such a deteriorating state, we have to pass laws to protect life,” said Miguel Pacheco.
Feldman summed up his passionate support for this rights-based law in his final statement during the council meeting: “Revolutions always start small—we know that. The Abolitionists started with 12 kids in the 1840s. This one has started small as well, with a handful of communities intent on turning the existing system upside down. Hopefully, if we move forward, it will make it OK for others to follow in the path. And we must make that path by actually walking it.”
Kathleen Dudley is co-founder, Drilling Mora County, www.drillingmoracounty.blogspo
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2 Responses to Community bill of rights bans fracking
1.
David Bacon on April 7, 2012 at 10:30 am
One fascinating aspect of the reporting of the ordinance in the “mainstream” press is the repetition of the lawyer’s reactions that this is “gravely” unconstitutional, without one factual sentence to back that up. Why does the ossified press let the fear flag fly so frequently ? Sorry for the alliteration. But seriously, this shows so clearly that we are, as people, kept from any real back and forth with regard to our own system of government, and that deciphering the constitution must be left to the high priesthood of attorneys and judges. Are the attorneys for the municipal league and the city of Las Vegas even competent to comment on constitutional issues?
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2.
Rivera Sun Cook on April 5, 2012 at 1:34 pm
It is a stunning experience to watch people from so many walks of life, many different viewpoints and perspectives come to the same conclusion that without water there is no life, with out clean environments there is no life. We do not have to be ‘environmentalists’ to understand this.
Based out of Taos County, my partner and I tour all over the United States with our performance and teaching work. We have seen many, many communities taking similar actions. A huge transformation is happening as economic and environmental and social situations become more dire. People are waking up. We have to. It is our water, our air, our ability to provide for our selves and families that are being threatened. Las Vegas has done a brave act. I hope many New Mexico Communities will have the courage to follow suit.
Rivera Sun Cook, playwright/performer
inspiring, heart-warming, deeply profound stories
http://www.risingsundancethea
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Summary of news stories on the City Of Las Vegas and their new Community Rights Ordinance
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Drilling Mora County
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Mission Statement:
To protect and preserve the water,land, air, health, and culture of Northern New Mexico
by educating people about the adverse impacts of oil and gas exploration
and production within our Region.
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