Overlawyered: Chronicling The High Cost Of Our Legal System

More on that wacky New Mexico environmental ordinance

We ran a post recently on how Mora County, New Mexico, had somehow passed an ordinance purporting to enact various fringy environmental theories (legal rights for natural landscape features like wetlands, a ban on oil and gas extraction by incorporated businesses, declaring all water a public trust) while stripping away a variety of currently recognized constitutional rights, both for businesses and others. A judge proceeded to strike the ordinance down, but several of our readers wondered how such a law could ever have made it past the review of lawyers in the first place, assuming the county was advised by such. Now Joseph Bottum, at the Weekly Standard, digs much deeper into the back story of the ordinance with exactly such questions in mind. He also explores the secessionist/insurrectionist tendencies implicit in the ordinance’s rejection of the supremacy or even authority of higher levels of government. It’s quite a story.

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2 Comments

  • Jeb Stuart? Really? With that exception, the weekly standard article is actually pretty good.

    One of the out – on – a – limb things that they did in the New Mexico ordinance was to claim that the groundwater was held in public trust by the county (note that this appears to be in addition to any powers they may have as alocal board of health, something I assume the county does have). That theory has been advanced in some places in New York, at least where a Township holds title to local waters because of some colonial era patent issued to the town trustees. Not sure that it would fly if tested in litigation, though, even in New York , because the context of those patents makes it pretty clear that the contemplated “waters” are surface waters e.g. lakes, bays, and the lands beneath them.
    Does New Mexico local government have some powers derived from a Spanish royal charter?

    • By Mike

  • […] In the Weekly Standard, Joseph Bottum has written a story called “Fracking the Constitution: Secessionism on the Left,” which criticizes the Mora County ordinance banning oil and gas drilling. (Hat tip to Overlawyered). […]