Communities Challenge Obstacles to Legal Right to Say No to Destructive Practices

If a community wants to protect its water from the hazards of fracking or doesn't want a giant factory farm to move in, they can just pass an ordinance that says so, right?

Unfortunately, according to a recent article posted at Yes! Magazine by Mari Margil, associate director of the Community Environment Legal Defense Fund, that's often not the case.

As just one example, Margil cites the town of Morgantown, West Virginia, which passed a ban on fracking within one mile of its city limits. However, their ordinance was overturned by a circuit court. Margil says, "Judge Susan Tucker ruled that municipalities are but 'creatures of the state' without jurisdiction to legislate on drilling or fracking within their borders. Tucker further wrote that 'the State's interest in oil and gas development and production throughout the State…provides for the exclusive control of this area of law to be within the hands' of the state of West Virgina. The environmental concerns of the residents of Morgantown, she determined, were not relevant to her ruling."

Margil further says that, "At the state level, once an activity is deemed a 'legal use,' communities are legally prohibited from banning it. Legal uses include everything from drilling and fracking to factory farming and corporate water bottling projects. When state governments legally authorize corporations to conduct fracking, they simultaneously prohibit communities from saying 'no' to it."

Some communities are choosing to forgo the "traditional site fights" for a broader, though longer term strategy: "adopting ordinances that challenge the structure of the law that grants corporations rights that override local, democratic decision making." As Margil notes, "These ordinances don’t just ban drilling; they counter the legal rights of corporations by creating legal protections for communities and the natural environment."

Read the complete article.

~ Marsha

Image courtesy of Peter Waichman Alonso via Creative Commons.

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