Protecting Mora County from fracking — still

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After years of debate over how to best protect our land and water, Mora County has completed a draft of an oil and gas ordinance and is asking the community to provide feedback.

Modeled on the ordinances adopted by Santa Fe and San Miguel Counties, the Mora draft ordinance is intended to protect the people and natural resources of Mora County from the negative impacts of oil and gas drilling through a strong regulatory framework.

During the next few weeks, the public will have opportunities to submit written or oral comments to the Mora County Commission.

As an elected official, I have spoken with many people in Mora County and most believe that we have a way of life and beautiful landscape that is worth protecting. I agree.

A common theme that I have heard is that the residents of Mora County prefer clean water, land, and air and sustainable rural economic development over industrial development related to oil and gas extraction.  

My position as a local community leader and elected official has always been that oil and gas drilling, especially fracking, poses a grave risk to our surface and ground water resources and that it should not be done where there is risk of contamination.

I am a long-time advocate for public policies that protect community health, land, and water. I also believe that Mora County can lead the way toward a clean energy future, balancing economic development with environmental sustainability.

In the last few months, Mora County has held two public meetings to get input on a draft oil and gas ordinance. Both were well attended by community members who expressed the need for a strong ordinance.

In both meetings, the public had the opportunity to ask questions of Dr. Robert Freilich, an attorney working for Mora County who specializes in developing land use regulations to prevent negative impacts of extractive industries and who wrote the draft ordinance.

A common sentiment at the recent public meetings any ordinance adopted by the Commission should have a good chance of being upheld if ever challenged in a court of law.

Previously, during 2014 and 2015, a different ordinance was enacted, legally challenged, and eventually overturned. Referred to as a “community rights ordinance (CRO)” and crafted by Thomas Linzey, it was a complete ban on oil and gas development.

At the time, based on research and expert advice, I concluded that the CRO was an experimental ordinance because it included a frontal challenge to the constitution and a section on secession from the United States. My opinion was that it was more of a statement of principles than a strong legal document that could protect Mora County from fracking.

My lack of support for the Linzey ordinance has been misinterpreted by some as a pro-fracking position. My skepticism was based on the need to enact legally defensible protections for Mora County and to protect the county from a legal challenge that, if successful, could have required the county to pay substantial plaintiffs’ attorneys’ fees. 

In a county with limited resources, I felt that was a risk that could not be ignored.

As expected, Mora County was sued by oil and gas corporations and landowners and the ordinance was ruled unconstitutional by a federal district court judge. After that ruling, Mora County had to decide whether to appeal.

Considering the risk of having to pay attorneys’ fees as well as a general sentiment that continued litigation would not be in Mora County’s best interest, the Commission decided not to appeal and reached an agreement with the plaintiffs that they would not demand attorneys’ fees.

In late 2015, after the CRO was overturned, the current Commission enacted a temporary moratorium on oil and gas development to allow time to develop a more effective regulatory ordinance. To that end, the Commission has heard presentations from groups such as PROTECT San Miguel, the citizen’s group that successfully advocated for passage of the regulatory ordinance adopted by San Miguel County, and Earthworks Oil and Gas Accountability Project.

In early 2018, the Mora County Commission extended the temporary moratorium and since then has developed a draft ordinance. The tentative timeline for passage is June 2018, with opportunities to comment through the month of May and early June.

The proposed draft ordinance, developed by Dr. Freilich, uses zoning to define areas that are inappropriate for oil and gas drilling due to potential water contamination. It also requires the industry be held accountable for the cost of their impacts before, during, and after extraction.

Dr. Freilich has a J.D. from Yale Law School and a Master of Law from Columbia University. He litigated before the Supreme Court in a case that established the constitutionality of growth management.

He has implemented land use plans in more than 250 cities and counties and has served as legal counsel on over 100 appellate cases.

Dr. Freilich is the author of both the Santa Fe and San Miguel county ordinances regulating oil and gas development.I firmly believe that enacting this strong regulatory ordinance in Mora County is the responsible approach for county government.

A protective ordinance at the county level is essential, but the regulation of oil and gas is too important to be left primarily to county government.

While I strongly maintain that counties should have their own powers to enact laws at the local level, I also believe that federal and state government must do more to protect local communities.

Throughout New Mexico, we must work together to craft and enact policies at the state level to protect our land and water, to advocate for the health of our families and communities, and to transition our economy toward a renewable energy future.

The draft ordinance and meeting schedule is available here:  bit.ly/2rTvpZI 

It can also be read in person at  the County Manager’s Office. The public is invited to participate.

Paula Garcia is the chair of the Mora County Commission. She may be reached at paulagarcia0902@-gmail.com or calling 575-387-5279.