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Frac King Drills Democracy In Corporate Civil Rights Case
by Tomas DiFiore
Wednesday Feb 19th, 2014 2:27 AM
No Horizontal Drilling, No Hydraulic Fracturing, No Drilling For Oil, No Exploring For Natural Gas In Mora County, New Mexico. Mora County passed an ordinance in April 2012, that bans drilling for oil and gas, bans the use of water for hydraulic fracturing, and declares that corporations aren't people.
A Ban ... To Eliminate The Constitutional Rights And Privileges Of Corporations, sounds fine.
The Frac Monster in Mora County, New Mexico - Dean of Greed - Royal Dutch Shell subsidiary has joined lawsuit to ban Mora County’s ban on oil and gas development.

January 2014 - This is the second lawsuit in the rural Northern New Mexico county over a community rights ordinance that effectively prevents oil and gas drilling. The recent lawsuit was filed by Shell Western EandP Inc., or SWEPI and asks the court not only to overturn the ordinance, but to award the company damages. Back on Nov. 15, 2013 the Independent Petroleum Association of New Mexico trade group and three Mora County property owners sued Mora County in federal District Court over the local ordinance. Photo Credit Staci Matlock-

“Is this fight really about hydraulic fracturing?” asked the trade group on their website shortly after the lawsuit was filed. “No. If you read the text of the Mora County Community Rights Ordinance, it clearly states that, ‘Corporate entities and their directors and managers shall not enjoy special privileges or powers under the law.’ “The fight in Mora is much bigger than fracking or even oil and gas.”

Global Giant Royal Dutch Shell, Joins Lawsuit Against Rural County In New Mexico

“Mora County commissioners and residents who support the Water Rights and Local Self-Government Ordinance readily agree their intent was to once again put citizens first and challenge the power of corporations.” Mora County approved the community rights ordinance in April 2013 in a 2-1 vote. The only commissioner who voted against the ordinance, Paula Garcia, months later, voted with the other two commissioners to hire law firms and defend the county’s position.

Santa Fe County has an ordinance that doesn’t ban oil and gas drilling, but is extremely restrictive. To date, the ordinance has not been challenged in court and there has been no drilling. Supporters of the ban in Mora County claim they will defend the ban in court.

“It’s very unfortunate that municipalities and communities cannot say no to corporations without getting sued. But Mora County is up to the challenge. I think this was expected," said County Commissioner John Olivas.

And they will have some help. Back in July, Olivas was quoted in the Santa Fe New Mexican saying that, should a lawsuit occur, the county would be represented by the New Mexico Environmental Law Center in Santa Fe, in collaboration with five other law firms from Ohio, Hawaii, Pennsylvania, New Hampshire and Oregon.

No Mora Fracking, sounds Italian eh?

Mora County, is a rural area just northeast of Santa Fe with a population of about 5,000, compared with New Mexico’s population of more than 2 million. Mora county has about 2,000 square miles of land, New Mexico’s total is 121,200 square miles, that's (1.6%).

No Horizontal Drilling, No Hydraulic Fracturing, No Drilling For Oil, No Exploring For Natural Gas In Mora County, New Mexico. Mora County passed an ordinance in April 2012, that bans drilling for oil and gas, bans the use of water for hydraulic fracturing, and declares that corporations aren't people.

“All Mora County residents possess the fundamental right and inalienable right to unpolluted natural water,” the ordinance says. “This right shall also include the right to energy practices that do not cause harm, and which do not threaten to cause harm, to people, communities, or the natural environment.”

A Ban ... To Eliminate The Constitutional Rights And Privileges Of Corporations, And It Bans Fracking Too?

SWEPI leased land in the county in 2010, intending to explore for oil and gas. The suit says Mora County's ordinance violates the Constitution's equal protection and commerce clauses, amounts to taking property without compensation, conflicts with U.S. Supreme Court rulings that gave legal rights to corporations, and violates other state and federal laws.

The plaintiffs, led by the Independent Petroleum Organization, assert that Mora is using its purported environmental concerns as a veil for the real purpose of the ordinance, which they say is to “eliminate the constitutional rights and privileges of corporations.”

The trade group IPO is joined by landowners Mary L. Vermillion, JAY Land Ltd. Co. and Yates Ranch Property arguing that the ban violates their rights under the First, Fifth, and Fourteenth Amendment. The claim under the Fourteenth Amendment says that the ordinance violates the plaintiffs’ fundamental property rights, as the landowner plaintiffs all own mineral leases that contain fossil fuels.

The Fifth Amendment claim says it is an abuse of government authority to infringe on people’s interest in real property. The claim under the First Amendment is a little more complicated, and suggests that exploring for oil and gas is protected by freedom of expression.

Mora County Commissioner John Olivas “I was in a position to protect our resources in Mora County, we’re ready for this fight.” The full lawsuit can be found here.

The debate about drilling in Mora County is based more on what could potentially come than on what the county has been. The New Mexico Oil Conservation Division website, which contains production data compiled since 1994, shows that there has been no recorded oil and gas production in Mora County during the last 20 years.

Further Out West: January 14, 2014

San Francisco Supervisors Urge Halt to Fracking in California
Californians Against Fracking Applauds Resolution Citing Fracking Pollution's Threat to State's Air, Water, Progress on Climate Change

“SB-4 does not contain any provision expressly superseding any related laws passed by local governments (a “supersedure” clause). Instead, SB-4 contains a “savings clause” stating “This article does not relieve DOGGR or any other agency from complying with any other provision of existing laws, regulations, and orders.” Public Resources Code, § 3061(n). Sen. Bill Monning, co-author of SB-4, has stated that “The savings clause in SB-4 also eliminates the possibility that the DOGGR’s environmental review and mitigation requirements for fracking could be interpreted to preempt the Governor, local governments, or any other agency from requiring additional review or mitigation pursuant to other laws, regulations or orders.”

"With the passage of SB 4, we may actually see an increase in local bans on fracking at the city and county level in California. A number of California cities have already enacted bans, although some are largely symbolic in areas that are not expected to see any fracking activity. But with rising tensions between oil and agricultural interests in the State, both of which need ample water and land to conduct operations, we may see an increase in city or county-level bans."

"While the legality of local bans will depend on the precise language used, cities and counties have longstanding zoning and land use powers which they can and do exercise to limit projects within jurisdictional boundaries. For example, San Bernardino County has an existing ban on the development of commercial-scale solar power facilities. Local bans on fracking have been upheld by courts in New York and in Pennsylvania. SB 4 itself does not contain language concerning preemption of other local laws. Rather, the “savings clause” cited above indicates that all other applicable laws still apply, including local laws. Therefore, the door is open for more local bans or restrictions on hydraulic fracturing in California."

In California Local Governments Can Ban Fracking Within Their Jurisdictions

On September 10, 2013, the Santa Cruz Board of Supervisors adopted a temporary ban on fracking while it seeks to amend the county general plan to include a permanent ban on fracking. Also in September, 2013, the Marin County Board of Supervisors passed a resolution banning fracking in the county, perhaps an entirely symbolic act since there are no known hydrocarbon resources in Marin County.

On the East Coast, three New York lower courts already have upheld fracking bans instituted by two towns. The lower courts held that state mining and drilling laws did not bar local governments from controlling land use.

The NY Oil Gas and Solution Mining Laws (OGSML) supersedure clause states that the OGSML shall supersede all local laws and ordinances relating to the regulation of the oil, gas and solution mining industries, but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.

Town Fracking Bans Ruled Not Preempted by State Mining Law

May 3, 2013
Zoning ordinances of two upstate towns barring hydraulic fracturing, or hydrofracking, to produce natural gas are not preempted by state laws regulating oil and gas industries, an Albany appellate court has ruled.

"While the Town's exercise of its right to regulate land use through zoning will inevitably have an incidental effect upon the oil, gas and solution mining industries, we conclude that zoning ordinances are not the type of regulatory provision that the Legislature intended to be preempted by the [Oil, Gas and Solution Mining Law]," Presiding Justice Karen Peters wrote for a unanimous panel of the Appellate Division, Third Department, in Matter of Norse Energy v. Town of Dryden, 515227.

New York, Pennsylvania, Colorado

In NY, a corporate entity argued that the Conservation Law preempts local municipalities from regulating gas, oil and solution drilling or mining. A lower court, however, held that Middlefield’s zoning law banning oil and gas drilling was not preempted by the State’s Conservation Law. The Court's decision emphasized that promotion of oil and gas resources and the regulation of oil and gas resources were considered separate and distinct activities from the regulation of land uses through zoning laws.

The regulation of oil and gas resources dealt with the activities of the industry such as the method and manner of drilling, not the development of the natural resource. The Court did not find any language in the legislative history to support the corporation's claim that the Conservation Law’s supersedure clause impacts or diminishes a local municipality’s constitutional right and statutory authority to regulate land use.

In its May, 2013 preliminary decision, the Appellate court found that language in the OGSML supersedure clause only prohibits municipalities from enacting laws or ordinances “relating to the regulation of the oil, gas and solution mining industries.”

The Appellate court also found, that the Town of Dryden’s zoning ordinance banning all activities related to the exploration for, and production or storage of, natural gas and petroleum does not seek to regulate the details or procedures of the oil, gas and solution mining industries. Instead, the court found that it establishes permissible and prohibited uses of land within the Town of Dryden for the purpose of regulating land use generally.

The Pennsylvania Supreme Court found that zoning laws serve a different purpose than statutes aimed at production of natural resources. The Pennsylvania Supreme Court found further that statutes governing natural gas operations do not preempt local ordinances governing where natural gas operations may take place.

The Colorado Supreme Court also found that the state’s Oil and Gas Conservation Act did not preempt local municipalities from regulating where gas drilling may occur, but went on to find that inasmuch as gas pools do not conform to municipal boundaries, a zoning ordinance banning all drilling within the local government’s borders would be preempted.

Sb-4 Contains No Such Supersedure Clause, But To The Contrary, has a “Savings” Clause.

Given the lack of a preemption clause in SB-4, and the presence of a savings clause, and given California, Pennsylvania and New York precedent on the issue, barring a reversal by the New York Court of Appeal on the two pending cases, it is likely that SB-4 will be deemed not to preempt any local government zoning laws banning fracking within that jurisdiction.

Even though their fracking statutes included supersedure clauses, rather than savings clauses, Pennsylvania and New York courts reached the conclusion same conclusion. And unless the California Legislature passes a supersedure clause to SB 4 prohibiting local government actions, Moratoriums and total Bans on Fracking are likely to be upheld if challenged in the courts.

California Coastal Commission, Feb. 12, 2014 Offshore Fracking Report – not good!

There is currently a push by pro-OIL groups, to allow permitting for oil and gas exploration and production in State Waters with expectations that from the south to the north, California Coastal Counties will develop Local Development Coastal Plans and amend respective General Plans to meet Federal Consistency Standards - which have a special section just for the OCS.

Extending the Coastal Zone Management Act (CZMA) Federal Consistency Standards for OCS development to State Waters, will only serve to diminish local governance and home rule. Among casualties to 'the new twin technologies of horizontal drilling and slickwater fracking besides whole ecosystems, i.e., the environment, are private property rights, surface rights, community rights, and our inalienable rights to clean air and water.

Watch the archived February 12, 2014 California Coastal Commission meeting at Cal-SPAN

Briefing on Offshore Fracking and Other Well Stimulation Treatments,
Alison Dettmer California Coastal Commission
Deputy Director Energy, Ocean Resources and Federal Consistency

State Waters – Next Steps
• Enter into a Memorandum of Agreement (MOA) with Department of Conservation to delineate respective authorities, responsibilities, notification and reporting requirements associated with well stimulation treatments
• Participate in SB 4 Independent Scientific Study (“SB 4 Science Study”)
• Urge that SB 4 Science Study and Statewide EIR analyze potential impacts of offshore well stimulation treatments
• Schedule a Coastal Commission workshop after the release of the SB 4 Science Study to examine results and next steps

Federal Waters: NPDES Permit
• General NPDES permit for oil and gas platforms establishes discharge standards for offshore
platforms in federal waters
– Reauthorized every five years
– Applies only to discharges into federal waters
• 13 platforms discharge DIRECTLY INTO OCEAN WATERS
• 10 platforms either reinject or comingle wastewater with one of the platforms that does discharge directly into ocean waters


How do you spell M-O-R-A-T-O-R-I-U-M?

From the Environmental Defense Center document titled Lifting The Fog: “The California Coastal Commission (CCC) is in a unique position to help influence how permitting and monitoring of fracking and other well stimulation techniques should take place on land within the coastal zone and in state and federal waters. Below are some recommendations that may clarify the CCC’s jurisdictional authority.”

6. “Analyze the extent of well stimulation practices in State waters and clarify if these practices constitute ‘development’ under the Coastal Act: Approval of ongoing well stimulation activities appears to be handled by other state agencies administratively without additional environmental review. The CCC should analyze current operations to determine if the CCC could feasibly and retroactively permit well stimulation activities and consider requiring CDPs for all ‘new’ well stimulation activities in State waters.”

No M-O-R-A-T-O-R-I-U-M language there...

9. “Issue guidance to local coastal authorities encouraging local coastal plans (LCPs) to include regulatory measures for onshore well stimulation within the coastal zone.”

No M-O-R-A-T-O-R-I-U-M language there...

I can just see the breakdown on that one. The wellhead is onshore in the coastal zone, but the borehole is in State waters, and acid fracking in the upwelling. For those concerned with arsenic levels in near shore waters, under any acidization program, arsenic is used to inhibit corrosion of the steel casing.

Seems though, that the case against new offshore oil drilling gets easier to make. Six months ago, … another offshore petroleum platform exploded and was on fire in the Gulf of Mexico, a rig drilling for gas in the, 55 miles (85km) off the Louisiana Coast. A blowout at the well forced the evacuation of 44 workers from the platform.

And just 6 months before that, again in the Gulf off the Louisiana Coast:

We've lost the Gulf of Mexico as an ecosystem and productive fishery, but not as a hydrocarbon production zone. A wave of new projects are expected to come online in the Gulf over the next two years, potentially pushing the region’s daily oil production past its previous peak of 1.8 million barrels per day by 2016, Wood Mackenzie forecasts. The Gulf’s daily production could grow by 180,000 barrels to 1.55 million barrels per day this year alone, according to the Energy Information Administration.

Sign Petitions to Ban Fracking at every local level, especially in California Coastal Counties. Initiate petitions and see what happens. Counties that are currently not 'producing counties' may find it easier to pass local governance measures. But be sure to include bans on other natural resources (water, sand) that are usually delivered to a drilling site and used in the drilling and frac processes.

Halt slickwater and acid fracking and acidization well stimulation projects offshore immediately. Sign a Northern California Coastal County Petition online.

Mendocino Coast

Potter Valley


Ok, that's done, it's movie time! Here's a link (8 videos on fracking) from an interesting site; well connected to Josh Fox and the national scene - Gasland 2, Fracking Hell, Split Estate, Sky Is Pink, more...

The health effects of fugitive emissions, and VOCs (air contaminates) particularly from wells producing in 'Sour Gas' zones is becoming more widespread, and more pronounced. Hydrogen Sulfide, H2S, is debilitating, and can be deadly. It's a sad film, people's lives, unbeknownst to them, again ruined, by unregulated low-level long-term exposure, in this case, in Texas.

What to do? Visit my blog, for critical Northern Coastal California frac faqs.
constant comments, and informative research links;

Tomas DiFiore