Despite the fact that hydraulic fracturing is giving America the lead in global energy production, on November 5, one town in Ohio and three in Colorado, passed ballot measures designed to ban or temporarily halt what is often referred to as "fracking." A fourth Colorado town awaits a recount. Initial election results showed the moratorium in Broomfield, Colo., failed by 13 votes. However, on November 13, after all the outstanding ballots were counted, it had passed by 17 votes. A margin of less than 0.5 percent triggers an automatic recount -- leaving the final outcome currently unknown. In Bowling Green and Youngstown, Ohio, the opposite happened. Similar proposed bans against fracking were defeated.

Of the four votes in Colorado, Tisha Schuller, president of the Colorado Oil and Gas Association calls the Boulder and Lafayette votes merely "symbolic," and noted that "Lafayette's last new well permit was in the early 1990s and Boulder's last oil and gas well was plugged in 1999."

However, Fort Collins, Colo., is near the promising production of the Niobrara shale. The Fort Collins city council passed a resolution encouraging voters to reject the proposed moratorium. And, in Broomfield, the city council, in August, entered into a memorandum of understanding that would allow energy company Sovereign to drill 21 wells -- as long as stringent standards are met. In these cities, these five-year bans will take a bite.

In Ohio, the Oberlin ban is, likewise, "symbolic," as Oberlin, a college town, has no drilling plans. Bowling Green, which rejected the ban, also has no drilling plans. However, in the Mahoning Valley where Youngstown is located, there is current oil-and-gas activity. In Youngstown, which is a depressed former steel town, residents have twice voted down a fracking ban. The Akron Beacon Journal reports: "the United Association of Plumbers and Pipefitters Local 396 spent more than $74,000 trying to defeat the amendment. The union called it a job-killer." Supporters of the ban claim "the loss can be explained by voters who are hard up for the jobs energy development brings." (Note: "energy development" does bring jobs.)

Within the past year, Longmont, Colo., became the first town in the state to ban fracking and Mora County, N.M., became the first county in the United States to ban the "extraction of oil, natural gas, or other hydrocarbons."

Because fracking is governed by the states, the bans put cities and counties at odds with state -- and even federal -- laws. According to a New York Times article written at the time of Longmont's fracking ban passage in November 2012, Colorado's Democrat Gov. John W. Hickenlooper warned residents of a lawsuit from the state and insisted that only the state has "the authority to regulate drilling." In July 2013, his administration joined the Colorado Oil and Gas Association in a lawsuit to overturn Longmont's fracking ban.

Ohio's Department of Natural Resources also, according to RC 1509, has the "sole and exclusive authority to regulate the permitting, location, and spacing of oil and gas wells and production operations within the state …" A recent lawsuit in Ohio challenged the idea of "preemption." The City of Munroe Falls argued "home-rule" authority to regulate gas-drilling operations and won the case in the Summit County Court of Common Pleas, but was reversed by the Ninth District Court of Appeals in what has been described as a "knock-out punch." The case will now go before the Ohio State Supreme Court with a decision expected this spring.

In New Mexico, where a lawsuit was filed, on November 11 against the Mora County drilling ban, the Independent Petroleum Association of New Mexico, along with one individual and two New Mexico land-owners, argue that Mora County's ordinance violates their rights under the First, Fifth, and Fourteenth Amendments to the U.S. Constitution, as well as corresponding rights under the New Mexico Constitution. The suit alleges that the County Commission lacks authority to pass this unconstitutional ordinance that impacts property rights, due process and First Amendment rights.

In 1978, New Mexico passed the New Mexico Oil and Gas Act, which created the Oil Conservation Commission and Oil Conservation Division, which are vested with complete "jurisdiction, authority and control" regarding the development of oil or gas. The Division regulates oil-and-natural gas activity within the State so as to protect, among other things, fresh water, public health, safety and the environment, and issues rules for "safety procedures for drilling and production of oil and gas wells."

Unlike the Colorado lawsuits, the suit against Mora Country, has not, to date, been joined by New Mexico government.

All of these fracking and drilling bans and/or moratoria are part of an attempted national movement led by the Community Environmental Legal Defense Fund, which has drafted model legislation for communities -- such as Mora County, Oberlin and Lafayette, known as the Community Bill of Rights.

The "symbolic" votes in communities with no oil-and-gas development are part of a strategy to target left-leaning constituencies where ordinances can be passed, building momentum.

The fracking fight will be fought in the court of public opinion, as much as it will be in state and federal courtrooms. Though environmental groups have declared victory in this round, the fight is far from over. Earlier this year, Democratic Gov. Jerry Brown of California, signed a law that specifically allows fracking. Across the country, people -- from Youngstown to California's Gov. Brown -- understand that "energy development" brings jobs and economic growth. They understand that energy makes America great.

 

The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc. and the companion educational organization, the Citizens' Alliance for Responsible Energy (CARE).