More than a dozen mothers, many with children in tow, took to the podium in front of Lafayette’s City Council Tuesday night to advocate for the city’s proposed Climate Bill of Rights and Protections. Residents have attended Lafayette City Council meetings in droves for more than a month now to speak on behalf of the measure, which seeks to make the right to a healthy climate part of city statute. If citizens feel the city is not protecting this right — in other words, if it allows oil and gas development — the measure would protect their right to civil disobedience in defense of the environment.
Many supporters of the measure view civil disobedience as the last available option to protect themselves from the health and safety risks of oil and gas development. Though free speech and the right to assembly are constitutionally protected, protesters and demonstrators often face charges related to civil disobedience such as trespassing and disorderly conduct.
Both residents and council members have expressed concern about the viability of legalizing civil disobedience, but supporters have come around to the idea that if their local government can’t protect them, they must seek ways to protect themselves.
Lafayette has been in this fight for years: In 2013, residents passed a community bill of rights ballot initiative, which banned fracking, by 60 percent. The Colorado Oil and Gas Association promptly sued the city, arguing that state law allows oil and gas development and thus preempts local laws.
The county district court agreed, and the bill of rights was overturned. The Colorado Supreme Court used the same argument when it struck down fracking bans in Fort Collins and Longmont last May.
Despite these outcomes, Lafayette residents are not giving up. Supporters of the measure often compare their motives to those of suffragettes or civil rights activists, who sought to change laws they found unjust.
“We cannot drink oil, and we cannot eat money, and we need the right to fight for what we need,” said 17-year-old Laurel Butterworth. “It is our human right to do this, and it is our duty to protect the world that we love.”
Residents and City Council members know they will likely face another lawsuit if the measure passes. But they hope a different legal strategy will lead to a better outcome. The 2013 state Supreme Court decision revolved around the question of state versus local power when it came to fracking bans. But City Council member Merrily Mazza told The Colorado Independent that the issue should be fought as one of human rights, “and we want it addressed ….on the basis of a right to a healthy climate.”
Kevin Lynch, an environmental attorney and assistant professor at the University of Denver’s Sturm College of Law, isn’t optimistic such an argument will hold sway. While the court’s ruling against both Fort Collins and Longmont were on narrower legal grounds, “it’s pretty obvious that this incarnation of the Supreme Court is going to be pretty hostile to any local efforts to get in the way of oil and gas development.”
Lynch worked to defend Longmont’s fracking ban last year, and found the Colorado Supreme Court “very deferential to what the industry wants.” On that case, he said, the court took a narrow view of the question, considering only whether the local law conflicted with state law. Given that, “under the Court’s reasoning, we could have shown that fracking causes hundreds of deaths in Longmont, and that wouldn’t have affected their reasoning,” he said.
Mazza isn’t sure what it would look like for a police department to not enforce laws governing civil disobedience, but she said that conversations with an attorney from the Community Environmental Legal Defense Fund (CELDF) have given her confidence. CELDF has offered legal support in the event of a lawsuit. The CELDF could not be reached for comment.
Supporters are heartened by Oregon Federal Judge Ann Aiken’s recent decision to hear a case in which 21 youth are suing for the right to a healthy climate. “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” Aiken said in a statement. Lafayette residents are hopeful that the same sentiment will allow their measure to pass, too.
It could happen. Lynch noted that the Colorado Constitution protects the inalienable rights to happiness and safety, and said “it could be argued that Lafayette’s measure is a local level implementation of this state provision.” But, he warned, “we cited that in the Longmont case and [the Court] pretty much dismissed it out of hand.”
If the Climate Bill of Rights succeeds, Lafayette will be only the third city in the nation to pass such an ordinance. Two Pennsylvania townships passed similar measures in 2015. The Colorado Oil and Gas Association did not respond to requests for comment in time for publication.
City Council is expected to take a first vote on the measure in early March.
