I have written in the past about how environmental politics is sometimes more important to activists than smart environmental policy. A recent report from Reuters more than confirms my point.
It was about an organization that’s behind efforts to enact local ordinances banning hydraulic fracturing; to date, the group has pushed prohibitions in 18 communities in six states. In the course of the story, the Pennsylvania-based lawyer who founded it said this:
“If a town goes bankrupt trying to defend one of our ordinances, well, perhaps that's exactly what is needed to trigger a national movement.”
Really? It’s all right to risk basic services – law enforcement, fire protection, education, health care – for a political position that more and more courts across the country have said is illegal?
That makes no sense.
At least the leadership in Denton, Texas, had the wisdom to walk back the city’s ill-advised ban in the wake of potential legal costs that would have gone well into six figures. And Mora County, New Mexico, repealed a fracking ordinance written by the same environmental group in the Reuters report after a federal judge ruled against it.
But still, some communities press on.
Lafayette, Colorado, for example, has already spent $60,000 defending a so-called “community bill of rights” that even the city has acknowledged won’t hold up in court. Grant Township, Pennsylvania – which has a total budget of just $250,000 – is being forced to use taxpayer dollars to defend an anti-fracking measure whose legality it knew would be in question.
Let me be clear: Local ordinances targeting the oil and gas industry are unconstitutional. They violate the Fifth Amendment, which prohibits government from taking away private property for a public cause without “just compensation.” And they run counter to a 1992 ruling in which the U.S. Supreme Court determined that the “takings” clause also requires government to compensate owners if it enacts rules that destroy the economic value of their property.
Moreover, municipal bans supersede laws that typically grant regulatory authority to the state. They also put the rule-making process in the hands of local officials who don’t possess the necessary technical expertise, and who are more likely to be swayed by the rhetoric and zeal of activists. That is a recipe for policy disaster.
But having said all that, if local governments want more control over hydraulic fracturing and other oil and gas operations, they need to go to their respective legislatures to change the laws. Statehouses, not courthouses, are the appropriate venues for this fight. And – despite activists who don’t seem to care – they won’t go bankrupt doing it.