There are two ways to ban fracking at the local level: the right way (that will hold up in court) and the wrong way (that may not).
The right way is via zoning and land use controls, aka Home Rule or local control. That is how New York towns have banned fracking – via their land use plans and zoning ordinances, with a legal strategy perfected by Goldman Environmental Prize winner Helen Slottje. These ordinances were enacted in accordance with state law and should hold up in court. The first such ban in New York was the Town of Otsego which just celebrated the 3rd anniversary of the ban with a surprise visit from President Obama.
Where a blanket prohibition of industrial uses may be impractical, a municipality or county may restrict drilling sites to designated areas. That is how Santa Fe County, New Mexico instituted a de facto ban. That was how the City of Fort Worth addressed drilling up until 2009. Subsequently, most of the rest of the city was opened up, with disastrous results, ending with the city suing the operator(Chesapeake). Dallas has a de facto ban, via a 1,500 foot setback requirement for well site, and prohibition of well sites in residential areas.
The wrong way is via a blanket prohibition, out of context of a land use plan or zoning laws, that singles out and bans shale industrialization (aka fracking) outright – by fiat. It must have some political appeal, since several cities and towns have enacted such ordinances, ostensibly to avoid the hassle of updating their comprehensive land use plans and zoning ordinances. That declaratory legal approach has been promoted by the Community Environmental Legal Defense Fund and Mora County, New Mexico has tried it – and was promptly sued by some frackers. Had they followed Santa Fe County’s example, they probably would not have gotten sued, since courts tend to defer to lawfully enacted land use ordinances, and the frackers know it. The money Mora County saved by not going through the comprehensive land use planning process (a la Santa Fe) will now be spent on lawyers and court expenses.
If Mora County’s ordinance is not upheld, it will be an advertisement for good land use planning and the correct use of land use ordinances. It will be a justification of the Santa Fe approach. (Santa Fe may get sued, but I wish the plaintiff’s good fracking luck – I sued a town that was defended by their land use lawyer and lost: Don’t go there cowboy.) The Santa Fe ordinance is here. The land plan that it is based on is here.
The only reason I can think of for not using the local zoning code to ban fracking is if
A. The town or county does not have a land use plan and zoning ordinance, or
B. State law specifically disallows the town to apply zoning laws to shale industrialization (in which case the town should challenge the law, as they did in Pennsylvania or the voters should change the state law, as they should do in Colorado)
If the municipality or county has land use controls, then they should go about a ban the right way, in the context of those land use powers. When in doubt, ask a land planner and a zoning attorney. If your elected officials have not banned fracking and frack waste disposal, get new elected officials. Preferably ones that have not been bought off by the frackers.
It helps if state law to actually recognize that Home Rule, local land use control applies to drilling. Which is the issue going to referendum in Colorado.
Legal council and organizers from the local control advocates in Colorado received notice today from the Colorado Supreme Court that ballot initiative # 75, the Right to Local Self Government, has cleared its final legal challenge, and is now headed toward signature gathering to place it onto the 2014 ballot. The ballot initiative, the first of its kind, succeeded in clearing all phases of State approval as well as two corporate legal challenges designed to keep the initiative from a democratic vote of Colorado citizens.
The ballot initiative asserts, “People have an inherent and inalienable right to local self-government, (ie. home rule, local control).” It goes on to say that the power to enact local laws protecting the health, safety, and welfare of individuals, communities, and nature will not be subject to preemption by higher levels of government, and that local governments will have the power to restrict the ability of corporations to interfere with such laws. Preemption has been used by the Colorado Mining Association to overturn a five-county ban on the industrial use of cyanide in gold mining, and is currently being employed against the communities of Longmont, Lafayette, and Fort Collins in their efforts to protect their people and cities from the harmful effects of modern oil and gas extraction.
Local control advocates will now begin to print petitions and organize volunteer signature gatherers throughout the state. The current volunteer structure spans over 30 Colorado cities and will grow through statewide presentations and ongoing organizing efforts.
Home Rule advocates support the view that our fundamental rights are universal, and that the current legal framework that favors corporations over communities threatens the essence of democracy. Ballot initiative #75 addresses the inherent problems of corporate-centered law. It is part of the larger national community rights movement to bring full democratic rights and protections to communities across Colorado and the United States.
Local Control Colorado is one of the organizations advancing ballot measure #75, the Colorado Community Rights Amendment, and helping local communities create their own protections against corporate activities that interfere with the rights of local communities and of individuals.
Please support this effort in any of the following ways: