Wagon Mound Self-Government Movement Falters

Citizens of Wagon Mound, New Mexico, failed to persuade their village council to enact an ordinance to elevate the village’s right of local self-government over the constitutional and property rights of corporate natural gas developers. A clear majority of resident speakers at the December 2010 council meeting supported the ordinance. Alarmist opposition from the village solicitor seemed to drive the council’s 2–1 vote to defeat the ordinance.

Threats to human and environmental health from the natural gas extraction process called hydraulic fracturing led residents to urge the ordinance on the council. Hydraulic fracturing is a process for releasing natural gas from subsurface rock formations at economic rates of recovery. Natural gas corporations drill cased wells into the rock, then blast a fluid through the well to open rock fractures capable of delivering natural gas to the surface.

The fluid used for hydraulic fracturing is a major source of concern to opponents of the process. The fluid is a mixture of water, sand, and chemicals, many of the latter believed to include heavy metals, toxins, and carcinogens. Opponents say this fluid can pollute ground and surface water, causing human health dangers. They also say federal and most state laws do not require corporate disclosure of the contents of the fluids, which companies consider to be proprietary information. The natural gas industry says hydraulic fracturing is safe, and that it reveals fluid contents in Material Safety Data Sheets required for worker safety under the federal Occupational Safety and Health Act.

Conventional environmental law would implement a regulatory process for issuing permits to allow hydraulic fracturing by the natural gas industry. The U.S. Environmental Protection Agency is studying hydraulic fracturing to decide whether to regulate it in this manner, and some states have begun to implement their own regulatory schemes. Industry says regulation is unnecessary. Many opponents of hydraulic fracturing believe that a regulatory process cannot prevent water pollution and the consequent harm to human and environmental health.

Residents of Wagon Mound decided that the issue is not whether hydraulic fracturing can be regulated adequately, but whether local communities have political authority to ban corporate activity harmful to people and natural environments. As drafted, the “Wagon Mound Community Water Rights and Local Self-Government Ordinance” asserted that people have an inherent and inalienable right to govern in the communities where they reside. And natural ecosystems have a fundamental and inalienable right to exist, flourish, and evolve naturally. Both rights–of people and of nature–are superior to the rights that corporations have under federal and state law, said the ordinance. It would have banned hydraulic fracturing by corporations, and prevented them from asserting any rights to defeat Wagon Mound’s assertion of the superior civil rights of people and natural rights of nature.

Wagon Mound’s December 13 village council meeting was passionate. Thomas Linzey and Ben Price of the Community Environmental Legal Defense Fund, who helped draft the ordinance, explained the civil rights foundation of the ordinance. Representing the Wagon Mound Development Association, this author spoke on the sources of law upon which the ordinance was based, including not only the inherent right of local self-government, but also New Mexico statutory law. Numbers of residents urged the council to protect local water by voting yes on the ordinance. One expressed dismay that two of the village council’s five members were absent for the meeting. One of the council members who attended, Nick Pino, a lifelong resident of Wagon Mound, unsuccessfully urged adoption of the law.

The most vocal opponent of the law was the village solicitor, Danelle J. Smith. Ms. Smith said the ordinance was illegal under the federal constitution and under New Mexico law on the power of municipal governments. She did not explain how federal and state law can defeat a right of local self-government that is “inherent and inalienable.” Ms. Smith warned that enacting the ordinance could subject the village to expensive lawsuits, despite that CELDF offered to defend the ordinance in court on a pro bono basis. Finally, Ms. Smith raised the specter of secession, pointing to section 6.1 of the ordinance, which would have required Wagon Mount to explore options for separating from federal or state governments if they used the supposed superiority of their laws to defeat the Wagon Mound ordinance. Many residents, who faced three-minute limits on their public comments, were frustrated that Ms. Smith was allowed to speak without a time limit. One resident spoke in opposition to the ordinance, asking why things could not just remain as they are in Wagon Mound.

In the wake of defeat, some residents of Wagon Mound are turning their attention to Mora County. A county council member has expressed interest in an ordinance to protect the whole county from hydraulic fracturing.