Colorado Community Rights Amendment Targeting Oil and Gas Raises Questions from State Attorneys
On the heels of a string of legal defeats in Ohio, Colorado state attorneys are now raising legal questions in what seems to be an emerging trend over the legality of tactics pushed by the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF).
CELDF, the group behind the Colorado Community Rights Network (COCRN) campaign targeting the state’s oil and gas industry, has recently come under fire for threatening local communities with bankruptcy and even filing a motion to intervene in a lawsuit on behalf of the ecosystem. But now, attorneys with Colorado’s Legislative Council are questioning the legality of the proposed amendment, as part of the process required to put the issue before the state’s voters on the 2016 ballot.
Among the issues raised by state attorneys: conflicts between state and federal law, how certain provisions would be enforced, and even an open-ended question for proponents as to what “rights does nature possess?” But questions being raised in Colorado are just the latest in a trend as CELDF is facing similar problems elsewhere.
Rights of Nature
In what seems to be a hallmark of CELDF’s Community Bill of Rights ballot initiatives, the measures seek to establish “rights of nature” that supersede existing property rights. But this tactic is of particular interest to Colorado lawyers, who are concerned about how that provision would impact state law. From Colorado state attorneys:
“What “rights” do local communities enjoy? What “rights” does nature possess? Do these rights differ from the “fundamental rights” of communities and nature alluded to in paragraph (a) of subsection (3) of the proposed initiative?
What results if the rights of natural persons, local communities, and nature conflict? Are the rights of businesses always trumped by the rights of persons, local communities, and nature?
Would a property right of a business, for example, always be subject to any environmental regulation adopted by a local government? Can there be any attempt to weigh or balance the rights against each other?”
As EID has previously highlighted, the obvious conflicts that arise from superseding property rights in that way cannot be over stated. And these amendments have not escaped notice of others, either. In Ohio, elected officials, organized labor groups, and industrial, commercial, and agricultural leaders from across the state have come together to oppose CELDF-backed “Community Rights” initiatives. But that trend has carried over to Colorado as well, where the official launch of the COCRN campaign quickly was quickly denounced by the business community. As reported by the Colorado Statesman:
“Many of our community leaders are also small business owners who strive to provide jobs and wages that support local families,” said Bob Golden, president of the South Metro Denver Chamber of Commerce and a board member of Vital for Colorado.
“Yet this shortsighted initiative could close those businesses who get on the wrong side of city council members and turn our planning commissions into mob rule,” he said.
But the initiative is also known for leaving taxpayers on the hook for expensive litigation. In Colorado, a CELDF-authored amendment cost the city of Lafayette’s taxpayers nearly $60,000 in legal fees. Reuters reports:
“The city of Lafayette, Colorado, has already paid some $60,000 so far defending its 2013 CELDF-authored community bill of rights in court, knowing the effort is a form of legal disobedience with little hope of yielding a courtroom win.”
With mounting legal questions and legal fees surrounding the initiatives, Ohio Secretary of State Jon Husted cited both of these factors in his decision last month to remove the charter amendments from the ballot in Athens, Fulton and Medina Counties. From Husted’s press release announcing the decision:
“The issue of whether local communities can get around state laws on fracking has already been litigated,” Secretary Husted said. “Allowing these proposals to proceed will only serve a false promise that wastes taxpayer’s time and money and will eventually end in sending the charters to certain death in the courts.”
Yet even as these concerns are continually being raised, CELDF has responded by saying that bankrupting a community might be “exactly what is needed.” Reuters reports:
“And 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.”
Even with a growing trail of legal questions and rising litigation costs, the impacts of CELDF’s national campaign against oil and gas development are perhaps most apparent in Mora County, New Mexico where resident Frank Splendoria recently said, CELDF made “suckers” out of local residents:
“It was totally foolish to begin with, to even try this. How do you pass an ordinance that’s going to override the state and the federal constitution? … I don’t know if they were playing us in Mora County as suckers or they were sincere in their beliefs.”
And now with Ohio officials acknowledging these issues even as Colorado state attorneys are raising significant legal questions, a trend is emerging that is not on the side of the extreme positions held by CELDF and their affiliates. That’s because the Community Bill of Rights is not just about oil and gas development; it’s a risky proposition backed by a group that has no regard for the mess they leave for communities whose taxpayers are put on the hook for the legal bills left in their wake.