Throughout the country, supporters and opponents of local fracking bans have engaged in a fierce debate over the legality of such legislation. Indeed, suits have been filed in California, Colorado, New York, Texas, and West Virginia to challenge anti-fracking measures enacted by localities. The majority of courts to consider the legality of these local ordinances have held that the anti-fracking measures are invalid. Yet another court has reached the same conclusion. In this latest case, the United States District Court for the District of New Mexico invalidated a fracking ban enacted by Mora County.
In 2013, Mora County adopted an ordinance that prohibited hydraulic fracturing within the county. Mora County’s anti-fracking measure also purported to remove the constitutional rights of corporations found violating the measures. In addition, the ordinance attempted to prohibit parties violating the measure from challenging the law or arguing that the measure is preempted. The ordinance stated that the doctrine of preemption would only be valid in those instances in which state or federal law did not weigh property rights as more important than the rights protected by the ordinance or when state or federal law gave the residents of Mora County greater protection than the ordinance.
Soon after the adoption of the ordinance, SWEPI, LP filed a lawsuit against Mora County, requesting that the court invalidate the measure. SWEPI argued that the fracking ban violated its substantive due process rights, the Equal Protection Clause, the First Amendment, and state law. In addition, SWEPI contended that Mora County lacked the authority to enact the ban.
The court primarily agreed with SWEPI. It held that the anti-fracking measure violated the Supremacy Clause because it conflicted with federal law. Moreover, the court found that the ordinance also contravened the First Amendment. The court also held that Mora County did not possess the authority to enact the anti-fracking measure.
Although the court ruled against Mora County, the court’s decision does not completely forbid future local ordinances that are less restrictive. Rather, the court noted that state law permitted localities to have concurrent jurisdiction with respect to some aspects of regulating oil and gas drilling. Other counties in New Mexico have already adopted legislation similar to that referenced by the district court. Sante Fe County has an ordinance that mandates oil and gas companies engage in extensive planning before initiating drilling.
Likewise, San Miguel County enacted an ordinance that requires companies to go through extensive planning before drilling and that also limits the areas in which companies may drill. If Mora County decides to not appeal the district court’s ruling, it will likely attempt to enact legislation that mirrors the approach of Sante Fe County and San Miguel County. Commentators have expressed concern that counties may not have the funds to enforce this type of legislation.
Read the decision.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
