Controversial NM fracking ban in jeopardy

By Rob Nikolewski │ New Mexico Watchdog

A primary election in a small New Mexico county could have a big effect on one of the country’s most restrictive bans on hydraulic fracturing.

The controversial law could go away altogether, in fact.

“I think the ordinance needs to be rescinded,” said George Trujillo, who won the Democratic primary in for a seat on the Mora County Commission in a landslide — 59.7 percent to 34.2 percent — over John Olivas, who spearheaded the fracking ban as commission chairman.

The ordinance, which passed on a 2-1 vote last year, has led to lawsuits from the energy industry opposed to the ban and help from environmental organizations that support it.

The pending legal proceedings could expose Mora County, one of the poorest in New Mexico, to court costs.

“Taxpayers having to pay for the lawsuits, that’s what bothered me,” Trujillo told New Mexico Watchdog on Wednesday, the day after the primary. “I feel we need to repeal that ordinance and go other routes.” Trujillo has no Republican opposition in November and will take office Jan. 1.

Paula Garcia was the sole commissioner who voted against the anti-fracking ordinance; she received 76 percent of the vote Tuesday night over a Democrat who staunchly favors the ban.

Garcia will face Republican Tim Fresquez in the general election in November, and she’s considered a heavy favorite in a county where Democrats far outnumber Republicans.

When asked if the combination of her victory and Trujillo’s might mean the ordinance could be overturned, Garcia said, “It’s early to be speculating about that at this time.”

As to how the election results could affect the lawsuits, Garcia said, “That’s really a question I wouldn’t be able to answer without some legal consultation.”

Garcia has long insisted she opposes fracking, but when the ban passed she worried the ordinance and its attendant legal issues put the county at financial risk.

“There’s a very strong sentiment (among voters) that this is a very special place and we have to protect it,” Garcia said in a telephone interview. “They want to have safeguards that are checked and being upheld by the courts.”

Alfonso Griego, who is not up for re-election until 2016, voted for the ordinance, as well.

Trujillo said he did not run for commissioner because of the fracking ban — “There are other issues in the county to take care of,” he said — but acknowledges it’s a hot topic for the fewer than 5,000 people who live in Mora County.

“I’m here to protect our water and our land,” Trujillo said, adding that he’s open to the idea of a limited amount of drilling in the eastern edge of the county, which is in the northern part of the state.

Other communities across the country have passed fracking bans, but one of the things than makes Mora’s Community Water Rights and Local Self-Governance ordinance different is it gives the local government the power to permanently make the entire county’s 1,933 square miles off-limits to hydraulic fracturing — something critics say eradicates private property rights.

That debate has prompted two federal lawsuits against the county: one filed by property owners and the Independent Petroleum Association New Mexico and another by Shell Western E&P, a subsidiary of oil giant Royal Dutch Shell.

The lawsuits claim the county is exceeding its authority and wants the court to overturn the ordinance. In addition, the IPANM suit wants the county to pay legal fees while Shell seeks both legal fees and damages for lost revenue.

While there is no drilling in Mora County now, the State Land Office has executed 122 leases.

Commissioner Olivas, who is also a community organizer with the New Mexico Wilderness Alliance, worked with the Community Environmental Legal Defense Fund, based in Pennsylvania, to help pass the ban.

The New Mexico Environmental Law Center is defending the county in the IPANM case, but the financial uncertainty surrounding the litigation put Mora County voters on edge.

“I know it’s going to be an issue, and all three commissioners are going to have to sit down and work on something that will really protect the water and the land and the air,” Trujillo said. “It’s common sense to me, but the lawsuits bother me and it bothers a lot of people.”

“It’s not only about the uncertainty and the costs that could come about as a result of lawsuits,” Garcia said, “but it’s my view that the laws that we do enact should have a good chance of being upheld by the courts. That’s my primary concern here.”

Two phone calls to Olivas, ousted after one term on the commission, went unreturned.

Contact Rob Nikolewski at rnikolewski@watchdog.org and follow him on Twitter @robnikolewski