Categories Archives: Indirect Action

The Mother of All Anti-Fracking Tools

The first county in the United States to outlaw fracking has an idea that could give environmentalists the upper hand—and deliver a major setback to big oil.

By: Jacob Baynham, Outside Magazine, June 2014

blowout-fracking

Mora County, New Mexico, a patchwork of prairie, foothills, and high peaks on the east flank of the Sangre de Cristo Mountains, unemployment stands at 16 percent, county workers operate out of leaky temporary buildings, and the population density is so low—just two people per square mile—that the tiny community and its largest town, 300-person Wagon Mound, are still classified as frontier by state health officials.

In short, Mora isn’t the kind of place that comes to mind for a national showdown on fracking. But in April 2013, county commissioners took center stage in the fight by passing the Community Water Rights and Local Self-Governance Ordinance, which declared it illegal for companies to extract hydrocarbons anywhere in the county, making Mora the first in the U.S. to ban oil and gas drilling outright, on public and private land.

Not surprisingly, lawsuits soon followed. The county was sued in federal district court in Albuquerque late last year by theIndependent Petroleum Association of New Mexico (IPANM) and three local property owners. In January, a second suit was filed by Shell Western, a subsidiary of Royal Dutch Shell, the world’s sixth-largest oil company.

The likely outcome? Busy lawyers. But the suits could also set a nationwide precedent by settling an interesting argument: Does a community’s right to self-governance trump the rights of corporations? The county ordinance’s basic aim is to protect the water supply in a parched region of a drought-stricken state, but it also contains a bill of rights for the environment, which argues that natural ecosystems “possess inalienable and fundamental rights to exist.”

The lawsuit by Royal Dutch Shell claims that Mora County’s rule denies the company its constitutional rights, chief among them corporate personhood, which states that a business has the same rights as an individual. (The controversial Citizens United Supreme Court ruling cemented corporations’ constitutional right to free speech.)

“This ordinance denies our property interest by declaring to criminalize virtually any activity undertaken by a corporation relating to oil and gas exploration and production,” says Curtis Smith, a spokesman for Shell.

Some environmentalists say that’s the whole point and are eager to test it. The ordinance was drafted with help from the Community Environmental Legal Defense Fund, a Pennsylvania nonprofit. CELDF cofounder Thomas Linzey acknowledges that provisions in the document contradict existing laws, but he relishes the chance to defend the self-governance statute before a judge. As the case goes into litigation, tiny Mora County, which doesn’t even have a stoplight, could help usher in a series of similar laws, and CELDF is working hard to ensure that this happens. It’s a fight Big Green groups have failed to take up, says Linzey, so it’s being waged at the grassroots level.

“Environmental folks don’t seem to give a shit,” he says. “They complain that the existing laws, which are stacked against us, are the only tools we have. We say maybe you should invent some new tools, because you’re not protecting anything.”

Banning oil and gas extraction under the purview of local government isn’t new. In 2010, Pittsburgh became the first city to ban fracking, which uses high-pressure water and chemicals to release oil and gas from subterranean shale deposits. Since then, more than 400 municipalities have instituted similar resolutions. The bans have mostly come in the form of zoning changes that keep the industry outside city limits.

But gas companies don’t drill in cities; they drill in the areas around them. That’s what makes Mora County’s ordinance unique. It bans energy extraction from a huge undeveloped area, nearly 1.2 million acres of rolling prairie, piñon and ponderosa forests, and 13,000-foot peaks.

“The oil and gas industry felt like it could contain these sorts of initiatives on a city-by-city scale,” says Eric Jantz, a staff attorney at the New Mexico Environmental Law Center, which is defending Mora County in the suit brought by IPANM. “But once you start getting into countywide prohibitions, that’s something the oil and gas industry has bigger concerns about.”

John Olivas, the Mora County commission chairman who helped pass the ordinance, says county commissioners voted for the sweeping legislation because regulations and zoning rules—typical anti-fracking tools—are simple loopholes that the industry would one day march through. “If the price is right for these corporations,” he says, “they’re coming.”

Karin Foster, the executive director of IPANM, counters that Mora County has been commandeered by a rogue environmental group. “This community-rights ordinance appeals to uneducated people in small communities that feel like they need to fight the man,” Foster says. “I don’t think the people leading them have their interests in mind.”

Some locals agree. Mora County is 80 percent Hispanic, and many residents are suspicious of Anglo groups coming in with an agenda, be it industrial or environmental. “That’s a real missionary attitude, to come into a place and say, ‘We’re going to protect you,’ ” says Sofia Martinez, an environmental -justice activist from Wagon Mound. Martinez opposes fracking, but she wishes that the county had taken a regulatory approach, one that didn’t expose it to potentially lengthy and expensive lawsuits. (Though the county has pro bono representation, by CELDF, among others, it may have to pay damages if it loses.)

Mora County’s case is likely to take years to resolve. Any ruling will almost assuredly be appealed, moving the case to the Tenth Circuit Court in Denver. But for now, Mora has become a cause célèbre, with other counties—like San Miguel, in New Mexico, and Johnson, in Illinois—considering similar bans. Cities and counties are now even working on community ordinances outlawing things like factory farms and GMO crops.

“We’ve all heard about Mora County,” says Sandra Steingraber, one of the nation’s most outspoken anti-fracking activists and author of Raising Elijah: Protecting Our Children in an Age of Environmental Crisis. Steingraber has been watching the fight all the way from upstate New York, where she’s battling at the township level. “The science is certainly on our side, and it points to the need for a nationwide ban,” Steingraber says. “Now we’ll see if the law ends up on our side.”

Lawsuit Filed to Halt Massive Las Vegas Water Grab

This is a pond on the Goshute Reservation, below the Deep Creek Mountains. This place will be turned to barren desert if the SNWA pipeline project goes through. Photo via Stop the SNWA Water Grab.

This is a pond on the Goshute Reservation, below the Deep Creek Mountains. This place will be turned to barren desert if the SNWA pipeline project goes through. Photo via Stop the SNWA Water Grab.

For Immediate Release, February 12, 2014

Contact: Rob Mrowka, (702) 249-5821, rmrowka@biologicaldiversity.org

Lawsuit Filed to Halt Massive Las Vegas Water Grab

Pipeline Would Dry Up Springs and Wetlands, Hurt Fish,
Sage Grouse, Pronghorn and Other Species

LAS VEGAS— The Center for Biological Diversity filed a lawsuit in U.S. district court today to halt a right-of-way needed for the Southern Nevada Water Authority’s long-proposed pipeline (commonly known as the “Groundwater Development Project”). If allowed to proceed, the pipeline would siphon more than 27.3 billion gallons of groundwater each year from the desert of eastern Nevada and pump it more than 260 miles to the Las Vegas Valley. The controversial $15.5 billion project would have profound effects on people, wildlife and Nevada’s natural heritage.

“Enough is enough,” said Rob Mrowka, a Nevada-based senior scientist with the Center. “Despite hundreds of pages detailing the unthinkable harm that would be caused by this project, tens of thousands of people signing petitions against it, and setbacks in state district and supreme courts, the Southern Nevada Water Authority and BLM have closed their ears to reason, logic and plain common sense. They need to drop this disastrous water grab.”

The Groundwater Development Project would, by the authority’s own admission, dry up or “adversely affect” more than 5,500 acres of meadows, more than 200 springs, 33 miles of trout streams, and 130,600 acres of sagebrush habitat for sage grouse, mule deer, elk and pronghorn as water tables plunge by 200 feet.

The greater sage grouse is an upland bird species, iconic and completely dependent on sagebrush habitat for its existence; the U.S. Fish and Wildlife Service found the bird to warrant protection under the Endangered Species Act in 2010. Its numbers have plummeted by more than 50 percent in recent decades due to fragmentation and loss of habitat (more of which would occur with the Southern Nevada groundwater pumping project). The Fish and Wildlife Service must make a decision on listing the bird for protections under the Endangered Species Act by 2015 under a settlement agreement with the Center.

At least 25 species of Great Basin springsnails would also be pushed toward extinction, and 14 species of desert fish would be hurt, including the Moapa dace and White River springfish. Frogs and toads would fare little better, with four species severely threatened by the dewatering.

In the lawsuit the Center argues that the U.S. Bureau of Land Management violated the National Environmental Policy Act and Federal Land Policy and Management Act in approving the groundwater development project.

“These laws exist because Americans care about their public lands,” said Mrowka. “Congress passed these laws to make sure our public lands are managed on the basis of multiple-use, to protect irreplaceable cultural and natural resources for current and future generations. They exist so that the needs of future generations of Americans can be taken into account — not just short-term economic growth and greed.”

The suit asserts the agencies failed to analyze impacts from permanently and irreversibly impairing the water springs, groundwater wetlands and wildlife habitat in the project area; failed to consider climate change; failed to adequately disclose how the project would comply with requirements of the Clean Water Act; and failed to comply with the Resource Management Plan in effect for the area.

Also raised in the lawsuit is the fact that the Water Authority has no rights to water to put into the proposed pipeline. On Dec. 10, 2013, the 7th Judicial District Court of Nevada issued a decision — which had been sought by the Center and allies in the Great Basin Water Network — that stripped the Authority of 83,988 acre-feet per year of groundwater due to severe deficiencies in the analysis that supported the original award of rights. The judge called the water-grab plan “likely the largest interbasin transfer of water in U.S. history.”

The Center has asked the court to order the BLM to prepare a supplemental environmental impact statement that addresses the flawed analysis, as well as to enjoin the agency from implementing any part of the project until it can be judged to be in full compliance with the law.

Background
On Dec. 19, 2013, the Center notified the BLM that due to the decision by the district court, the agency must withdraw its “record of decision” for the groundwater development project and reevaluate the proposed project and its purpose and need. Under the Federal Land Policy and Management Act, an applicant for a right-of-way for a pipeline must have a valid existing right established under state law, which the Authority in this case does not. The BLM has not responded to the Center’s letter.

The Center has actively opposed this water grab since 2006. In 2010 and 2011 it filed hundreds of formal protests with the Nevada state engineer opposing the award of water rights to the Water Authority; it was these rights that were stripped by the state district court.

The Center is a member of the Great Basin Water Network, formed in 2004, a broad coalition of government agencies, American Indian tribes, organizations and individuals opposed to this groundwater development project of whose board Rob Mrowka is a member. The Water Network will also file suit against the pipeline right-of-way, as may other individual entities in the Network.

The groundwater development project is projected to cost over $15.5 billion when financing costs are included. The Network is not opposed to water for southern Nevada but instead of a short-term pipeline proposes water be gained from increased indoor and outdoor conservation, reasonable limits to growth, re-evaluating how the Colorado River is managed and used, and long-term solar-powered desalinization of Pacific Ocean water.

The Center is represented by Marc Fink, staff attorney with the Center for Biological Diversity, and local counsel, Julie Cavanaugh-Bill of Elko, Nevada.  

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 675,000 members and online activists dedicated to the protection of endangered species and wild places.

Original post by Center for Biological Diversity

Nevada Court Rules Against SNWA Water Rights

This is a pond on the Goshute Reservation, below the Deep Creek Mountains. This place will be turned to barren desert if the SNWA pipeline project goes through. Photo via Stop the SNWA Water Grab.

This is a pond on the Goshute Reservation, below the Deep Creek Mountains. This place will be turned to barren desert if the SNWA pipeline project goes through. Photo via Stop the SNWA Water Grab.

LAS VEGAS — A Nevada judge in White Pine County Court has rejected plans for a controversial pipeline that would draw water from rural valleys and send it to Las Vegas.

Seventh District Court Senior Judge Robert Estes ruled Wednesday that there were flaws in the state water engineer’s findings. He said the engineer’s report was “not in the public interest” and “arbitrary and “capricious.”

The Southern Nevada Water Authority water sought rights to the water in three northern Nevada rural valleys. SNWA officials say the water rights are critical to build a pipeline that would supply Las Vegas with more drinking water in the future.

The Great Basin Water Network, an environmental group, is claiming a victory after the ruling. The group claims the pumping of water would ruin fragile ecosystems and suck the valleys dry.

“We’ve really questioned the fox guarding the hen house. The state engineer, the Bureau of Land Management have all put undue emphasis in the findings and reports from the Southern Nevada Water Authority rather than looking at independent science,” said Rob Mrowka with the Great Basin Water Network.

Read more:  Original article by Nathan Baca and Alex Brauer, 8 News Now