At City Council tonight, we will be presented with the question:
“Is the city allowed to protect the health and safety of its community?”
Actually the question will be:
“Does the city have authority to ban fracking?”
There is confusion about what powers the city has, and there may be talk of limits of self-governance, pre-emption, home-rule, Dillon's rule, community rights and paramount state control.
But I think the question fundamentally is about the assertion of rights.
Where It Gets Sticky
From a regulatory standpoint, once the state deems something as legal use, by regulating or issuing permits, then communities are restricted from prohibiting their use. Since fracking is not defined, or regulated by the state, the city can express it's voice. Unfortunately AB 972, a Trojan horse bill for the oil industry, may close that loophole, as would the eventual regulations by the state division known as DOGGR. Cities do have power despite this idea of pre-emption.
Since 1879, California's Constitution has granted liberal governing authority to those cities that sought it. California is one of 43 home-rule states. Culver City is one of 119 other California cities that have chosen a City Charter, the home-rule option, as their governing rule.
A charter city is self-governing, and it has ultimate authority over municipal affairs. Such affairs include government structure, local elections, regulation of the police force, zoning and municipal contracts. Being a charter city means that we can make laws that are different than state laws, unless there is a “good” statewide interest that would say otherwise.
Clarity Is Elusive
This compares against a General Law city, which is subject to Dillon's rule, where statutes are derived directly from those of the state, and the city is just a creature of the state.
Law and politics never are clear-cut. There have been instances where California charter cities have been treated as creatures of the state. Recently the state ransacked the Redevelopment Agencies. In 2004 and earlier, the state pushed local property taxes into schools. In 1978, the voters beat the cities up and gave property tax authority to the state with Prop. 13. Clearly when finances or property tax are involved, cities are on a tight leash.
So the city has rights. But are they the right kind?
In terms of oil and gas uses, I asked DOGGR's Chief Deputy Director Jason Marshall about how some communities, such as Santa Barbara County, are requiring fracking operations to have discretionary permits with full CEQA (air quality) review and the Monterey County planning commission had affected denial of permits that included fracking. He acknowledged that it was a legal gray area.
The city probably can currently use its land use authority to regulate fracking.
But this discussion of authority doesn't address the central problem:
“How is it that the rights of a corporation can supersede the rights of individuals and communities, and their rights to health, safety and clean water?”
This is what the Council needs to be addressing, what we need to be talking about.
Can our city ban fracking?
The answer depends entirely on the will of the people and their desire to assert our rights.
Mr. Murray, a recent City Council candidate, may be contacted at Stephen@BaldwinHillsOilWatch.org
