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Editorial: Fracking ban unconstitutional, says federal judge

A federal court ruling last week should put a stop to the war on fracking— a counterproductive movement that threatens the economic security of every man, woman and child in Colorado.

The Gazette has said it routinely in recent years. Fracking bans stomp on private property rights, which are protected by the federal and state constitutions. A city or county has no more authority to control and devalue mineral and surface rights than it has to suppress religion or free expression. Property rights are a cornerstone of freedom that trumps a community’s quest for more collective control. We have property rights, in large part, to protect the economy from irresponsible community plebiscite. Without the secure right to make constructive use of private property, societies cannot progress and succeed.

Colorado isn’t the only battleground in which “community control” advocates seek to obstruct the country’s march toward energy independence with an anti-jobs assault of private property. In New Mexico, activists persuaded voters in Mora County to ban fracking and drilling. An oil producer filed suit, as the ban rendered worthless the company’s investments in property.

Federal District Judge James Browning ruled the law violated the U.S. Constitution’s Supremacy Clause because federal case law protects property rights for corporations. The new Mora County law said oil and gas companies “shall not have the rights of ‘persons’ afforded by the United States and New Mexico Constitutions,” including First Amendment and Fifth Amendment rights of free speech, property and due process.

In related news, Denton City Council drills into its fracking ban ordinance.

It’s an ignorant proposition on the surface. A company is nothing more than an entity of one or more individuals interacting in marketplaces of goods, service, commodities or ideas. If companies cannot have property rights or free speech, it’s hard to imagine how hospitals, churches, grocery stores or any other businesses would survive challenges made in the interest of “local control.” A mosque without First and Fifth Amendment rights could not survive mob challenges in a community fearful of Muslims. “Local control” activists could demand laws eliminating companies that offended their values.

Here’s how the judge explained it.

“Some counties could prohibit speech on certain viewpoints,” wrote Judge James O. Browning, in a 199-page decision. “Others could deny basic rights to members of certain racial ethnicities . 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.”

If challenged, Browning’s decision will go to the 10th U.S. Circuit Court of Appeals — which has jurisdiction over Colorado.

Activists can petition whatever they want onto a ballot. City councils and county commissions can try as they may to shut down oil and gas production for the sake of “local control” and exaggerated fears. But the Supreme Court’s interpretation of the Constitution has a history of negating inappropriate forms of local control. If it did not, we’d still have Jim Crow laws and segregated schools. Because local control has logical, ethical and moral limitations, our march toward energy independence will likely survive. We can thank the wisdom of America’s founders, who foresaw community assaults on individuals rights and preempted them with law.

This article was from The Gazette (Colorado Springs, Colo.) and was legally licensed through the NewsCred publisher network.


  1. They should take everything made by oil out of their stores!

  2. Wow people are stupid as hell!

  3. Then close all the gas station and car dealerships and turn there power off !! What idiots

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