Letter: Better way to address fracking

Dear Sierran Editor:

By all accounts that I’ve read, hydraulic fracturing (“fracking”) deserves
its destructive reputation and community outrage. Local elected officials must have the land-use regulatory tools and the political willpower to protect their communities. But these Community Rights Ordinances are not the solution, and so I must disagree with the piece about community rights and fracking in the July/August/September issue.

The Democracy School and materials drafted by CELDF out of Pennsylvania provide a lot of food for thought about what is wrong with our current system. I agree with many of the problems and challenges that CELDF has identified, but I disagree with the solution their attorneys propose.

Rather than using these ordinances as “guided missiles” into our current constitutional framework by challenging important legal principles such as preemption, I believe municipalities and counties already have the power through their planning and land-use authority to place the burden on the applicant who wishes to engage in fracking. If the applicant fails to meet its burden, then local governments are well within their authority to protect the public’s health and safety by denying the application.

Where do we find the community’s health, safety and public welfare spelled out? In the community’s comprehensive plan. Where do decision-makers spell out their regulatory powers for shifting the burden from the community to the applicant? In the community’s land-use regulations, which must be consistent with the comprehensive plan.

A legal challenge is always possible, especially if the industry perceives the potential profits from fracking greatly exceed the costs of going to court. But I would much rather defend the local government using its well-established planning and land-use powers than a local government that decided it is time to re-write the U.S. Constitution, city by city, county by county.

I hope the New Mexico Coalition for Community Rights will look carefully at the path it’s on and find a path that truly empowers and protects the right of the community.

— Lora A. Lucero
Lucero is a city planner and land-use attorney