The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The case, from last week, is Swepi, Inc. v. Mora County (D.N.M. Jan. 20, 2015). The ordinance begins, as is customary, with various recitals; the first recital (which isn't customary), says, "WHEREAS, We, the residents in Mora County, are a multi-cultural community with indigenous roots of Many." The ordinance also declares that rivers possess "inalienable and fundamental rights": "Natural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems, possess inalienable and fundamental rights to exist and flourish within Mora County against oil and gas extraction."
It then goes on to the substantive prohibitions:
Section 5.1: It shall be unlawful for any corporation to engage in the extraction of oil, natural gas, or other hydrocarbons within Mora County.
Section 5.2: It shall be unlawful for any corporation to engage in the extraction of water from any surface or subsurface source within Mora County for use in the extraction of subsurface oil, natural gas, or other hydrocarbons ….
Section 5.3: It shall be unlawful for any corporation, or any director, officer, owner, or manager of a corporation to use a corporation to deposit, store, transport or process waste water, "produced" water, "frack" water, brine or other materials, chemicals or by-products used in the extraction of oil, natural gas, or other hydrocarbons, into the land, air or waters within Mora County….
Section 5.4: It shall be unlawful for any corporation, or any director, officer, owner, or manager of a corporation to use a corporation to construct or maintain infrastructure related to the extraction of oil, natural gas, or other hydrocarbons within Mora County. "Infrastructure" shall include, but not be limited to, pipelines or other vehicles of conveyance of oil, natural gas, or other hydrocarbons, and any ponds or other containments used for wastewater, "frack" water, or other materials used during the process of oil, gas, or other hydrocarbon extraction.
It also purports to strip corporations that violate the ordinance - or simply "seek to engage in activities prohibited by this ordinance," presumably including by filing lawsuits challenging the ordinance - of First and Fifth Amendment rights:
Section 5.5: Corporations in violation of the prohibitions enacted by this ordinance, or seeking to engage in activities prohibited by this ordinance, shall not have the rights of "persons" afforded by the United States and New Mexico Constitutions, nor shall those corporations be afforded rights under the 1st or 5th amendments to the United States Constitution or corresponding sections of the New Mexico Constitution, nor shall those corporations be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the New Mexico Constitution.
More broadly, it purports to trump the state and federal bills of rights:
The New Mexico Constitution's Bill of Rights, and the United States Constitution's Bill of Rights and amendments thereto, shall be recognized as preemptive law within the County of Mora only to the extent that their interpretation and application are not inconsistent with the provisions of this Ordinance regarding the powers and "rights" of corporations, and to the extent that they do not otherwise elevate property interests over rights secured by this Ordinance.
It purports to make the ordinance very hard to repeal, something that violates New Mexico law:
The foundation for the making and adoption of this law is the people's fundamental and inalienable right to govern themselves, and thereby secure their rights to life, liberty, and the pursuit of happiness. Accordingly, this Ordinance automatically suspends the operating rules of the Mora County Commission when the question of repealing this Ordinance is introduced. Repeal of this ordinance shall require both a unanimous vote of the Mora County Commissioners voting in favor of the repeal of the ordinance, and a voter referenda following that vote which shall make the repeal effective only if two thirds of the Mora County electorate vote to repeal the ordinance.
And it expressly contemplates for secession from any "level of government," presumably meaning the state and federal governments, that try to overturn the ordinance:
Any attempts to use other units and levels of government to preempt, amend, alter, or overturn this Ordinance, or parts of this Ordinance, shall require the County Commission to hold public meetings that explore the adoption of other measures that expand local control and the ability of residents to protect their fundamental and inalienable right to self-government. Such consideration may include actions to separate the County from the other levels of government used to preempt, amend, alter, or overturn the provisions of this Ordinance or other levels of government used to intimidate the people of Mora County or their elected officials.
Unsurprisingly, the federal district court struck the ordinance down, as violating the Supremacy Clause, New Mexico law that authorizes oil and gas extraction, and the First Amendment:
Section 5.5 is substantially overly broad in its restriction on First Amendment rights. SWEPI, LP is currently exercising its First Amendment rights by filing suit to overturn the Ordinance - i.e. seeking to violate the Ordinance. According to Section 5.5, because of SWEPI, LP's exercise of its First Amendment rights, it no longer has First Amendment rights. Such a law is illogical and cannot stand. Section 5.5 is overly broad in its restriction of First Amendment rights, and, as such, must be invalidated.
The court held that the ordinance doesn't violate the Due Process or Equal Protection Clauses, because those clauses require only some "rational basis" for commercial regulations, and such a basis could be found here. It also held that the Takings Clause claim against the ordinance wasn't ready to be litigated in federal court, because the plaintiffs could go to state court to demand "just compensation" for the destruction of their oil and gas rights. (The Takings Clause claim, of course, is no longer relevant given the court's other decisions, since the invalidation of the ordinance means that the oil and gas rights haven't been destroyed after all.)