Shepstone Management Company, Inc.
The CELDF just lost a big one in Mora County, New Mexico and there are huge lessons for fractivists and gas supporters in every state including PA and NY.
There is, perhaps, no more flaky or radical fractivist group than the Community Environmental Legal Defense Fund (CELDF), a point we made in one of our earlier pieces on the organization. It is run by a totally narcissistic individual by the name of Thomas Linzey, who’s never accomplished much of anything other to attract the attention of similar-minded radicals.
Despite being anti-corporate by definition, it’s incorporated, of course, and enjoys the financial support of special interest corporations such as the Park Foundation, the Heinz Endowments, the Colcom Foundation and corporate money launderers such as the Schwab Charitable Fund and the Tides Foundation. It’s phony to the core and now a Federal Court has effectively called it out.
The CELDF is a Pennsylvania outfit and has been pushing it’s line of radical thinking in various places throughout the Commonwealth, recently, including Highland Township (Elk County), Grant Township (Indiana County) and Conestoga and Martic Townships (Lancaster County), the last two in opposition to the Atlantic Sunrise Pipeline project. These townships have been led down a road their naive supervisors will come to regret if a recent Federal Court decision from New Mexico is any guide. There are lessons in that decision for every community regardless of state.
The CELDF gets no mention in the 199 page decision on the legality of a Mora County, New Mexico, ordinance virtually outlawing corporations, fracking and everything between. Nevertheless, its model “Community Bill of Rights” ordinance, essentially the same one it recommends everywhere, got massacred. Let’s count the ways:
“The Ordinance Violates the Supremacy Clause”
The CELDF advocates what is nothing less than a revolution. As we’ve noted many times before, it seeks to throw what has been law since the early 1800’s. The court found its arguments to be nothing short of ridiculous:
Each of these provisions contradicts federal constitutional law. Section 5.5 states that corporations that violate, or seek to violate, the Ordinance do not have First or Fifth Amendment rights, nor rights under the Commerce Clause or the Contract Clause…
The Supreme Court has established that corporations are “persons” within the meaning of the Equal Protection Clause and are entitled to its protections…
The Ordinance, in contradiction to the Constitution and Supreme Court precedent, states that corporations that violate, or that seek to violate, the Ordinance have no First or Fifth Amendment rights…
Mora County lacks the authority to nullify constitutional rights…
A county cannot decide when federal preemptive law applies and when it does not…The Tenth Circuit has held: “The Supremacy Clause of the Constitution provides that federal law trumps, or preempts, contrary state laws.”…The Ordinance…appears to state that no one can challenge it, or any other Mora County ordinance, as long as the ordinance concerns the health, safety, or welfare of its residents…If this argument has validity, it would signal the end of all civil rights that the Constitution protects. A county could pass an unconstitutional ordinance, but then say that anyone who challenged the ordinance lacks constitutional rights to support the challenge. The county could enforce its unconstitutional ordinance free of constitutional restrictions, because no one could challenge the validity of the ordinance.
The consequences of such an outcome could be devastating to the Union as the Nation has known it since the Civil War. Some counties could prohibit speech on certain viewpoints. Others could deny basic rights to members of certain racial ethnicities. Still others could prohibit religious practices; others could require participation in religious services. The Constitution would be applied in a cookie-cutter fashion across the United States with such inconsistency from place-to-place that it would cease to be a Constitution of the United States at all.
Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy…
This local law is contrary to over one-hundred years of Supreme Court precedent…
The Defendants argue that Mora County residents‟ right to self-government provides them with the right to pass the Ordinance, including the provisions stripping corporations of their constitutional rights…They argue that the Declaration of Independence and the Treaty of Guadalupe Hidalgo provide, or at least recognize, these rights…The Defendants are, however, mistaken. “The Declaration of Independence is a statement of ideals, not law.”…Moreover, to whatever extent the Treaty of Guadalupe Hidalgo provides Mora County residents with self-governing rights, those rights cannot trump the Constitution…Someone must, in an orderly constitutional system, determine who decides certain issues, and the Supreme Court has concluded that it — not local communities — determines who decides federal constitutional issues.
“The Ordinance Violates…First Amendment Rights”
The CELDF is, for all practical purposes, Stalinist in nature, desirous of shutting down anyone who disagrees with it and denying them free speech in the name of “the people” for whom it, and it alone, consigns itself the ability to speak.
There will be some, no doubt, who say I’m being too harsh, but the group’s website isn’t “celdf.live2.radicaldesigns.org” for nothing and you tell me what shutting down other opinions to make yourself the sole spokesperson of the people is, if not Stalinist.
The court, in any case, didn’t buy the radical message of the CELDF or any of its fanciful BS theories, as, sadly, the Mora County folks did:
Similarly, § 5.5 states that corporations that violate, or seek to violate, the Ordinance have no First Amendment Rights…[It] purportedly strips them of these rights if they violate or seek to violate the Ordinance. SWEPI, LP is currently exercising its First Amendment rights by filing suit to overturn the Ordinance — i.e. seeking to violate the Ordinance. According to Section 5.5, because of SWEPI, LP‟s exercise of its First Amendment rights, it no longer has First Amendment rights. Such a law is illogical and cannot stand. Section 5.5 is overly broad in its restriction of First Amendment rights, and, as such, must be invalidated.
“The Ordinance Violates State Law and Must Be Invalidated”
The Federal Court also examined New Mexico pre-emption statutes, which are similar to many other states. It, too, examined cases from other states, including the Dryden decision from New York State. It found the Mora County ordinance violated pre-emption law in reasoning that offers a common sense rebuttal to the foolishness of the Dryden decision.
New Mexico state law impliedly preempts the Ordinance, because it conflicts with state law. State law may either expressly or impliedly preempt a county ordinance…
The Ordinance conflicts with New Mexico state law and must be invalidated…
By banning hydrocarbon exploration-and-extraction activities, the Ordinance is antagonistic to state law, because it prohibits activities that New Mexico state law permits. New Mexico courts have generally applied the conflict preemption doctrine when local laws permit conduct that state law prohibits…
The Court…has been unable to find a New Mexico case in which a court considered an ordinance as extreme as this one. If the Supreme Court of New Mexico‟s words that “an ordinance will conflict with state law when state law specifically allows certain activities or is of such a character that local prohibitions on those activities would be inconsistent with or antagonistic to that state law or policy” have any meaning…they must mean that a county cannot outright ban an activity that is highly regulated by that State and of which the State impliedly encourages. Most ordinances that New Mexico courts have upheld are merely more restrictive than state law without banning an entire area of conduct that is permitted by state law…
State law is not silent on the exploration and extraction of hydrocarbons. The State has created an extensive statutory and regulatory scheme to regulate oil-and-gas production…By extensively regulating oil-and-gas production in a manner that is intended to prevent waste…the State has indicated that oil-and-gas extraction is permitted. This focus on preventing waste also highlights the Oil and Gas Act‟s focus on the efficient production of oil and gas. Furthermore, if state law did not permit oil-and-gas production, the State would not so heavily regulate oil-and-gas production. A complete ban on oil-and-gas extraction would be “antagonistic” to state law…
the Defendants argued that the Ordinance does not regulate oil-and-gas extraction, because it bans all such activities…In the field preemption context, a ban rather than a regulation would be a distinction without a difference, because a county could not legislate in that field regardless how the legislation is characterized. For conflict preemption, however, the distinction makes a difference, and it is a difference that hurts the Defendants‟ position. If the Defendants had merely regulated oil-and-gas production in Mora County, those regulations may not conflict with state law, even if they were stricter than state law…As long as the regulations did not prohibit conduct that state law permits or permit conduct that state law prohibits, the regulations would likely be upheld. The Defendants decided, however, to ban all hydrocarbon extraction activities rather than enacting specific regulations. Because the Oil and Gas Act permits oil-and-gas production, such a ban conflicts with state law by prohibiting conduct that state law permits…
Sections 5.2, 5.3, and 5.4 are all invalid for the same reasons: they effectively ban all oil-and-gas production in Mora County. While they do not explicitly ban hydrocarbon extraction activities — like § 5.1 does — they have the same effect of prohibiting all oil-and-gas production in Mora County…Each section is an effective ban on all oil-and-gas production. No one can produce oil and gas without the necessary materials, chemicals, or infrastructure. By prohibiting these things, the Ordinance effectively prohibits all oil-and-gas production…Because a complete ban on oil-and-gas production conflicts with state law, §§ 5.2, 5.3, and 5.4 must be invalidated.
The decision was reported by Energy Wire which focused, predictably, on a very small part of the decision indicating New Mexico pre-emption law would allow for some types of regulation, but that was hardly news compared to the rejection of the ban and the wholesale demolition of the CELDF’s bizarre theories. This is what the decision said about regulation:
The Oil and Gas Act does not address issues such as traffic that oil-and-gas production creates; noise limitations for production near residential areas; potential nuisance issues from sound, dust, or chemical run-off; or the impact of oil-and gas production on neighboring properties. There is thus “room for concurrent regulation” by Mora County…Because there is room for concurrent regulation, State law does not preempt the entire oil-and-gas field.
No one in oil and gas industry will be surprised by the news municipalities can regulate traffic. Gas companies have been working with communities on those issues all along. The big news is the rest of the decision stating, in so many words, that the CELDF is running a scam.
And, Then There Are Those Takings
But, the court had still more to say, particularly regarding takings. It concluded the case for a taking wasn’t ripe to decide Federally because New Mexico has inverse condemnation law that hadn’t been used by the plaintiff yet to seek compensation. That fact, by itself, is illuminative in its regard, in that the best approach in many states with strong inverse condemnation laws is to challenge bans on that basis. The Federal Court laid out the case:
SWEPI, LP suffered an injury in fact to support its takings claim…
The Ordinance deprives SWEPI, LP of all economic value in its leases. As the Supreme Court noted in Pennsylvania Coal Co. v. Mahon, the “right to coal consists in the right to mine it.”…In the same way, the right to oil and gas consists in the right to extract it. The Ordinance deprives SWEPI, LP of that right. See Ordinance § 5.1, at 4 (“It shall be unlawful for any corporation to engage in the extraction of oil, natural gas, or other hydrocarbons within Mora County.”). The leases each state that they only provide the right to oil and gas…The only use and the only value of the leases lie in the ability and right to extract oil and gas, which the Ordinance prohibits. The Ordinance effectively destroys all economic value that SWEPI, LP has in its leases.
SWEPI, LP‟s ability to exploit its mineral interests has been infringed. This infringement is sufficient to establish an injury in fact…
The Supreme Court explained: “What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.” Pennsylvania Coal Co. v. Mahon, 260 U.S. at 414. In the same way, what makes the right to drill for oil valuable — i.e. an oil-and-gas lease valuable — is the ability to act on it by drilling for oil. Without that right, an oil-and-gas lease is worthless. Even if SWEPI, LP intended to hold its leases solely as an investment, because the Ordinance prohibits anyone from acting on them, they are worthless. Without the possibility that oil and gas can be extracted under the leases, they have no value. Thus, SWEPI, LP has suffered an injury in fact, regardless whether it intends to act on the leases.
This reasoning holds true even if it is currently economically infeasible to drill for oil and gas in Mora County.
This tells us three things. First, damages for takings may be claimed under inverse condemnation statutes where they are strong enough (this is the basis of the case Rod Taylor brought in Illinois, which appears to have moved that state off dead-center). Readers will also recall the case from Michigan which cost that state a pile of money for what was effectively a ban.
Secondly, where the property involved consists solely of oil and gas rights and there’s a ban, there’s a taking. It couldn’t be any clearer.
Third, Federal Court is the place to challenge some of these bans, especially in places such as New York, where the courts are heavily politicized.
Linzey to Supervisors: Risk Municipal Bankruptcy for My Cause
The court decision as a whole also tells us one more thing in no uncertain terms: the CELDF is not only running a scam but a potentially expensive one for the victims of Thomas Linzey’s arrogant self-indulgence. Here’s an excerpt from Energy Wire to illustrate (emphasis added):
To CELDF Executive Director Thomas Linzey, the federal court’s decision is disappointing but not surprising.
That’s because the community-rights approach is inherently risky, Linzey said. CELDF promotes community self-governance as a challenge to existing legal constructs that he calls the “three horsemen”: corporate rights, pre-emption of local law by state law and a doctrine known as Dillon’s Rule, through which state legislatures traditionally assign local powers.
“You can’t ban legal activities like oil and gas extraction without challenging those three doctrines,” he said. “A lot of people live in a dreamland, which is that we live in a democracy in which our communities actually have control over what happens. In reality, we live in a system of laws that is punctuated by those three horsemen.”
Ritchie, the New Mexico law professor, said other communities considering CELDF’s approach should proceed with caution.
“Cities and counties need to ask themselves whether they effectively want to be used as a tool to further this agenda of local government control,” he said. “If they’re considering their alternatives, this decision certainly should influence them.”
Following unsuccessful litigation, local governments like Mora County will be stuck with sizable legal fees they may not be able to afford. But Linzey said the first advice he gives to interested towns is that they must be willing to accept the worst-case scenario: municipal bankruptcy. If they’re not on board, he won’t work with them, he said.
“If you can’t stomach that, and you don’t believe enough in your right to decide at the community level, then you shouldn’t put your toe in this stuff,” he said. “Because it’s going against everything.”
Amazing isn’t it? Linzey wants township supervisors in Pennsylvania to risk municipal bankruptcy to further his own radical agenda. This singularly unaccomplished spoiled individual (he’s never done any significant other than run the CELDF, which loses nearly all its cases) will, meanwhile, sit comfortably somewhere else living off the special interest money from the likes of the Park Foundation. I wonder if the supervisors in Conestoga, Grant, Highland and Martic Townships know that?
Linzey, of course, isn’t going to pay to settle the takings claims and the Park Foundation isn’t going to help with the legal bills, either. No, Adelaide Park Gomer, will probably be somewhere else, too, probably getting an award for her environmental activism from one of the myriad other radical fractivist groups she supports. Here’s hoping some of our readers know those supervisors and send them a copy of this.
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