County in New Mexico purports to ban oil/gas extraction, assign legal rights to rivers, wetlands and other natural features, declare all water a public trust, create an enforceable legal right to a “sustainable energy future,” strip corporations of various current constitutional rights, and make the whole thing self-executing against private parties. Federal court: uh, no, guys [Eugene Volokh on decision in Swepi, LP v. Mora County, striking down ordinance on various grounds including Supremacy Clause, First and Fifth Amendments.]
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You really have to wonder how the legislature got any attorney to craft such an ordinance and deliver an opinion of counsel supporting same.
Perhaps it was just a situation where the legislature knew that the law would be struck down, but decided to go for the publicity (used to be known as “ink”, or a “press hit” before newspapers lost their prominence) to curry favor with some constituency. Presumably not the property owners who might possibly benefit from a free market.
I don’t know anything about the geology of New Mexico, I’ll admit that, but I have noticed that most of the places that have outlawed fracking do not have suitable geology/resources to extract oil or gas. It would be interesting to see what would happen if a location which has outlawed fracking (e.g. city of Syracuse New York) suddenly discovered some frackable land within the city limits. It would be a conflict between the urgent need for the revenue, and the need to please environmental groups.
“You really have to wonder how the legislature got any attorney to craft such an ordinance and deliver an opinion of counsel supporting same.”
This was a county ordinance, not a state law, no legislature involved, just the county commissioners.
What the hell makes you think that county boards/municipal councils are in the habit of having attorneys draft ordinances?
I expect the next ordinance to contain the clause “This ordinance cannot be amended or repealed, by any means, times infinity times one million, no tag-backs.”
What the hell makes you think that county boards/municipal councils are in the habit of having attorneys draft ordinances?
Around here in Florida where I am, all ordinances are drafted or approved by the City Attorney. Most times they will draft the ordinance to make sure it is not conflicting with other ordinances, city codes, state or federal law. (Otherwise they will make changes of ordinances from other cities or proposals by city managers.) The point is that the City Attorney always has a hand in the “action.”
I am just curious…. are you saying that doesn’t happen where you are?
It seems to be a recurring theme that local governments will try to grandstand on what is a national issue that has nothing to do with the locality in question. A bit like Takoma Park MD being a “nuclear free” zone, or the various town resolutions for and against Gulf War II (the invasion of Iraq to remove Saddam Hussein.) Without real responsibility or consequences, you can get away with doing things that are really daft.
Mr. S: “What the hell makes you think that county boards/municipal councils are in the habit of having attorneys draft ordinances?”
Twenty-nine years as an attorney in government, at the town, county, and state levels.
“This was a county ordinance, not a state law, no legislature involved” : A county board is a legislative body if it can enact ordinances. A town board is a legislative body, so is a state legislature.
Executives (such as a town supervisor, or a president) can’t enact laws…although that fellow in Washington seems to think he can. Perhaps the law in N.M. combines the executive and legislative powers in the county board?
I will agree that the ordinance in the New Mexico case does not look like it was enacted with much attention to the the powers of the county in question under N.M. state law or to the United States constitution, which was kind of my point. If that county board does legislate without consulting an attorney (I doubt that, you would think they would have one, even if just for patronage purposes), then they are probably in legal trouble on other fronts as well as this one.
The county ordinance in this case, appears in the federal court decision. It is an absolute scream, and well worth a look. I feel sorry for the citizens of Mora County.
“I am just curious…. are you saying that doesn’t happen where you are?”
In my state, there are several municipalities that have repeatedly enacted ordinances which while not unconstitutional, were contrary to either state or federal law. If there are attorneys involved in drafting these ordinances, they should be disbarred.
Hey, look on the bright side – at least they didn’t try to repeal the law of gravity…
The whole ordinance looks pretty sophomoric, especially the part about repeal procedures.
These are the best county commissioners the people of Mora County New Mexico could find?
On the contrary, it looks like they were well aware of those powers.
The ordinance mentions the Bill of Rights. It mentions federal and state laws. It mentions the courts overturning the statute, in whole or in part. It simply declares THIS law to be superior to those OTHER laws.
It pretty much looks like a lawyer told them “you can’t do this, and here are all of the many reasons why.” And the county board, upon hearing those reasons, said “Fine, we’ll just draft the ordinance so it declares all those reasons invalid.”
The county supervisors, in my opinion, should be held personally liable. They intentionally used the color of law to deprive people of their rights. They declared that any corporation who dared to challenge the law would be deprived of all First and Fifth Amendment rights (and also declared that anyone intending to violate this law can’t challenge any county ordinances anyway) – but beyond that, they actually declared that the Bill of Rights, constitutional amendments (why is it that some people can’t understand that the Constitution does not solely consist of the amendments?), federal laws, state laws, and even any other county laws do not apply if they conflict with the ordinance. There’s no plausible argument they can make that this is legal.
It’s also kind of interesting to read the commentary the judge has on the animus doctrine. Certainly the ordinance here drips with animus. But the judge declines to apply it. In fact, he devotes pages of footnotes to criticisms of it, including part of Thomas’s dissent in the DOMA case.
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