Colorado Town to Discuss Policy Granting Anti-Fracking Protesters ‘Unprecedented Immunity’ From Arrest
Tonight in Lafayette, Colorado, the city council will begin debating whether the city should legalize a “direct action” proposal that would essentially legalize all types of civil disobedience against oil and gas operations, including sit-ins and blockades. As the Boulder Daily Camera reports, this would “allow protesters almost unprecedented immunity from arrest or detainment.”
Sound familiar? That is because this is the second time in less than a year that the Lafayette city council will debate such a proposal. The effort is being pushed again by city council member Merrily Mazza, a self-proclaimed activist and founder of the “wrong door” anti-fracking activist group East Boulder County United (EBCU). Last year the city council voted unanimously to remove the direct action provision that Mazza had championed — over activists’ heckling, badgering, and shouting — while she was absent from the vote. The final, stripped down version of the “Climate Bill of Rights,” deemed a “nice, symbolic ordinance” by Mazza, was passed by the Lafayette City Council by a 4-2 vote.
So why is Mazza trying to bring back the proposal now? Mazza explains in a recent video message on ECBU’s Facebook page that she is reintroducing the measure following a recent visit from national ban-fracking group Community Environmental Legal Defense Fund’s (CELDF) Thomas Linzey.
CELDF Meeting – Going for Bankrupt
Linzey spoke to Lafayette residents — most of whom were members of EBCU — to convince them to move forward with a lawsuit to ban fracking in their town, even though the move has no hope of success due to the fact that the Colorado Supreme Court has already ruled local fracking bans illegal. He also spoke to the importance of demonstrations and endorsed a type of “direct action” policy in his remarks.
The Pennsylvania-based CELDF offered to represent the city pro-bono should it decide to pursue this meritless strategy. Of course, that doesn’t mean there is no cost or risks involved for Lafayette. Linzey himself admitted that the frivolous lawsuit or illegal ban on production would probably result in the city being sued by operators, a situation where Lafayette would be on its own and not shielded or supported by CELDF:
“…they can sue you for damages. In this case or other cases dealing with oil and gas it could be the cost of the unobtainable oil and gas resources that you’ve locked up from the oil and gas industry. So they’ll sue you for that as damages, that could be substantial. In addition, as a civil rights lawsuit, it allows them to access another law which would force the municipality to pay the attorney’s fees of the lawyers representing the oil and gas company in their lawsuit against the municipality.”
The suit would also have ramifications for the city’s insurance standing.
“The final piece of that is your insurance company generally runs for the hills. Because there are provisions within different insurance carrier contracts which allow the insurance company to uninsure your municipality if they attempt to defend particularly a law that the insurance company believes is unconstitutional or illegal. So you can expect no insurance coverage from your insurance carrier.”
So to recap, the town will be on the hook for untold damages and attorney’s fees, and may also be in violation of their insurance carrier contract and lose coverage, all to pursue a ban that the Colorado State Supreme Court has already deemed illegal. Lafayette’s own city attorney has recommended against moving forward:
“It is my opinion the city would lose that lawsuit, swiftly. The Colorado Courts have stuck down local government bans (i.e., whether through moratorium, initiatives, or regulations); rather they have uniformly held that local government bans of oil and gas are preempted and not legal. As such, it is my opinion that the Lafayette Climate Bill of Rights cannot be viewed or used as a ban of oil and gas development. I am also not aware of any novel legal theory that could support this interpretation.”
But now Mazza is fighting to align the city with a group whose leader has said unabashedly:
“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.”
Perhaps CELDF’s Colorado front group, Colorado Community Rights Network (COCRN) is trying to make their unruly behavior—like crashing Democratic Governor John Hickenlooper’s book presentation and using other extreme tactics such as calling on activists to “fill up jails” and even threatening communities with bankruptcy—permissible.
In the unlikely event that Mazza is successful, expect far more political stunts in Lafayette’s future.