Legal experts discuss options available to California communities that want to limit or ban fracking and other methods of oil and gas development, in a teleconference hosted by Earthjustice.
Teleconference Speakers
Deborah Goldberg, Earthjustice: Deborah Goldberg is Managing Attorney of the Northeast Office of Earthjustice, the nation’s premier nonprofit environmental law organization. Earthjustice successfully defended the Town of Dryden in an oil and gas industry lawsuit challenging the community’s fracking ban.
Helen Slottje, Community Environmental Defense Council: Helen Slottje is co-founder of Community Environmental Defense Council which has worked with communities all over New York State to pass local fracking bans. More than 170 communities in New York now have local bans or moratoriums on the books, thanks in large part to the work of CEDC. In April 2014, she was awarded the Goldman Environmental Prize for her work on this issue.
Heather M. Minner, Shute, Mihaly & Weinberger: Heather M. Minner is an attorney with Shute, Mihaly & Weinberger where she represents environmental and community groups to protect open space across California from proposed development projects. She has drafted numerous ballot measures including local initiatives to ban fracking and other high-intensity oil and gas operations.
Rachel B. Hooper, Shute, Mihaly & Weinberger: Rachel B. Hooper is Managing Partner at Shute, Mihaly & Weinberger. An expert in election law, Ms. Hooper has drafted and defended land use initiatives on behalf of community groups and local governments, and has prepared numerous referenda challenging local legislative approvals.
The teleconference was moderated by Kathleen Sutcliffe, campaign manager at Earthjustice, and held in April of 2014.
Teleconference Transcript
Kathleen: Hi, everyone. Thanks for joining us on this call with legal experts who are working on limiting and banning fracking at the local level. I’m Kathleen Sutcliffe, a campaign manager with Earthjustice, and with us we have Deborah Goldberg, who is the managing attorney of Earthjustice, Helen Slottje, who’s a co-founder of the Community Environmental Defense Council, and Rachel Hooper and Heather Minner who are both with Shute, Mihaly and Weinberger.
Before we get started, a little bit of background on why we decided to host this call. As you all know very well, fracking and other extreme forms of oil and gas extraction are threatening communities around the country and there’s a lot of ways that people are trying to tackle this problem, but one way that we think is showing some real promise, one, as a way to protect communities who are facing fracking, and two, as a way to demonstrate to state and federal officials that there are huge, huge concerns that people have about this practice, is through bans that are being enacted at the local level.
So today we hope that you’ll come away from the call with a basic understanding of how this approach works, where it’s worked elsewhere and as well as some information about what options are available to California communities.
But just want to say also before we get started, although we have a lot of lawyers on the phone, what they’re talking about shouldn't be construed as specific legal advice. It’s just sort of general educational information, but we nonetheless hope that it will be very useful to everyone. I think that’s all I’ve got in terms of introduction and housekeeping.
Deborah, do you want to kick us off?
Deborah: Sure, I’d be happy to do that. So as Kathleen mentioned, my name is Deborah Goldberg. I’m Managing Attorney at Earthjustice, and I’ve been working on fracking issues since I started at Earthjustice in 2008.
The first thing that I realized, to my astonishment—and I think it surprised a lot of people—is that this is an industry that’s managed to secure for itself exemptions from most of the major federal environmental laws that usually constrain heavy industrial activities. So we don’t have the kind of federal floor for environmental protection that we would typically have, and we get thrown into the states for regulation of this industry. And, unfortunately, the states have not always stepped up to the plate either. In some cases, we have found situations where the states are just completely unprepared and just responding from crisis to crisis to crisis.
"In a number of places, folks have been getting together, organizing and starting to use the tools that are available to them at the local level to try and address some of the problems that neither the federal government nor the state government have been willing to address." – Deborah Goldberg, Earthjustice
In some cases, we’re finding that states are really in the pocket of industry and have no real interest in protecting the people who are going to be on the front lines living near these development sites. And so it has turned out that, in a number of places, folks have been getting together, organizing, and starting to use the tools that are available to them at the local level to try and address some of the problems that neither the federal government nor the state government has been willing to address.
Just as we have a wide variety of state laws that potentially can govern the industry directly, we also have a variety of state laws that govern the extent to which local communities can exercise control over their own fate. There’s a broad spectrum of state law that governs what localities can and cannot do. And it’s very important to know, depending on where you are, what really is an option for you.
So, for example, the law ranges from places like California which has a framework that is very conducive to local control. California allows communities not only to enact zoning laws that can constrain where the oil and gas industry goes but also to regulate the industry directly if they don’t want to rule it out completely. Temporary moratoria are possible, as well, so that probably places like California have some of the widest open opportunities for local action. And then at the other end of the spectrum you have places like West Virginia, where one of the courts ruled that local communities have absolutely nothing to say, whatsoever. It’s entirely up to the state, and local communities are at the mercy of what the state will and will not do. Unfortunately that state has been completely captured by industry, by extractive industries generally, and as coal comes under attack, increasingly the oil and gas industry is exercising influence.
So it is really important to understand what exactly is available to you as an option and some of the later speakers will talk more about California very specifically. But generally speaking, communities in California are in a very good place to be thinking about this type of a strategy. It’s very important to know about it.
When you talk to your local decision-makers, they may very well be concerned that if they take action they’re going to get sued. So you want to have the information available to give them comfort that, if they are sued, the measures that they adopt will be capable of withstanding legal challenge and if they adopt things properly within the framework that’s actually available to them, they may not get sued at all because industry doesn't really want to waste money on cases that it's obviously going to lose. I have been involved very directly in a number of states with these local control efforts.
We represent the Town of Dryden in New York directly in defense of its zoning ordinance, which completely excluded oil and gas development from within the town borders. And the town and many of the towns in New York have adopted a zoning ordinance approach because that’s what is available in New York that really can be enforced to keep the industry out of a municipality. We unfortunately do have preemption provisions [in New York] that make it very difficult, probably impossible, for localities directly to regulate the industry but we can regulate land use.
In Dryden, and in a large number of other communities in New York, the zoning ordinance has been the option of choice, and so far we’ve been successful at two levels of court. We’re going to New York’s highest court in early June and that will decide once and for all whether or not New York communities will continue to have the right that they’ve had under home rule to use land use regulation to control where industry goes. (Editor's Note: On June 30, 2014, the New York Court of Appeals, the state's highest court, ruled that the towns of Dryden and Middlefield can use local zoning laws to ban heavy industry, including oil and gas operations, within municipal borders.)
I think at this point I will turn it over to Helen to talk a little bit more specifically about what she has been doing in New York.
Helen: Hi. My name is Helen Slottje, as Deborah mentioned. I’m an attorney in Upstate New York. Together with my husband, we run a small, two-person nonprofit law firm. And what we have been doing here in New York is taking the position that despite the fact, as Deborah was mentioning, that in New York communities cannot regulate the oil and gas industry, that they can use their land use powers to exclude the industry.
And part of the work that we do is helping communities, especially in the beginning when we were working on this, helping citizens’ groups get organized. We do petitioning here, but it’s not the same as in California. It’s a nonbinding, just an expression of what you’d like your local town board to do. There’s no referendum type option here. But we would work with communities for them to express to their town board that they wanted a local ban. We would then work with the town board to write and draft these town bans and then we have defended two of the municipalities that were sued over their local ban, Deborah representing another and then there’s two more.
"Part of what we are using the local ban movement for is … to express the level, the breadth and depth of opposition to fracking." – Helen Slottje of Community Environmental Defense Council
There’s a total of five cases pending or resolved in New York. And what we have found here—and I’m not sure exactly what the case is in California but it’s probably similar—that we were told, “You’re just a vocal minority. You are very outspoken; you’re very loud; you’re elitist; you’re academics. You make it seem like there’s a lot of you but there aren’t. And this is really a very narrow issue from a bunch of NIMBYs.” And part of what we are using the local ban movement for is to try to get some change on the state level, which is unlikely but worth a shot, to express the level, the breadth and depth of opposition to fracking.
And as part of that, there’s a group called FracTracker [that has been tracking this] and we now have around a total of 200-ish towns, cities, villages that have passed some sort of local law, whether it’s a temporary moratorium or a permanent ban. And we have been tracking that on this map, which is often published—they link to it in the New York Times or the Wall Street Journal and other stories because it is a great visual to show where this movement is. It’s in rural towns, urban places, Republican towns, Democratic towns, academic towns, farming towns. It’s not just a single small subset of people.
So we thought that was really important [and] as part of that we worked all across the state with a whole bunch of different communities, trying to get as many of these laws passed and trying to customize them and have them be enforceable and in a position that they could be upheld by the courts to protect those communities, and that being the first and foremost reason for these laws. But then secondly, the point of trying to use it to show the depth and breadth again of the opposition. And the third thing that this accomplished was as part of these informal—unlike California—informal petitioning efforts, people got out and started talking to their neighbors. They started going to town board meetings and getting involved.
And there’s not just fracking. Fracking has a whole wide group of ancillary services, as you know, compressor stations, pipelines, storage yards, pipeline storage areas and the like. And so when some of those facilities now come in for approval, there are people on the ground in the town, they already know each other, they’re already going to the town board meetings, they’ve learned how to go to a town board, how to get what you want out of the town. You may not always get it but they’re there and they’re organized. So it has served a whole number [of purposes].
And then the fourth purpose has been we’re hoping that it inspires other places to see that they really can do something and they don’t have to buy industry’s line that this is a train wreck, it’s coming. All you can do is brace for impact. So that’s where we are coming from.
Kathleen: Great. Thanks, Helen. Rachel and Heather, you guys want to sort of tag team and give people a sense of what’s possible in California?
Rachel: Sure. I’ll start it off. This is Rachel Hooper. I’m an attorney at Shute, Mihaly and Weinberger, as is Heather Minner, and our firm specializes in land use and environmental law. We represent community groups, environmental groups and some public agencies and we have experience in drafting local general plans and zoning ordinances and also land use initiatives. We’ve been doing land use initiatives for many years and we’re on this call because we just concluded drafting two anti-fracking initiatives, one for the County of Santa Barbara and the other for the County of San Benito, which are currently circulating for signatures. We’ll come back to those in a minute.
I wanted to start off with just a few words about state efforts regarding fracking and then we’ll turn to what can be done at the local level. As many people on the call may know, the State Division of Oil, Gas and Geothermal Resources, called DOGGR, regulates oil and gas development in California. And just last year the state legislature passed a law called SB4 and this law requires specific permits to be issued for conducting fracking or acid fracking. And it also calls for studies of fracking’s impact statewide and for this agency, DOGGR, to develop fracking regulations.
But many people felt that this law did not go far enough at all in addressing the concerning impacts of fracking. There’s nothing in the law that limits the extent or amount of fracking that can occur in local communities and these permits for fracking are being issued before the environmental studies will be completed and before DOGGR issues its regulations. So the law, SB4, fell far short of what environmental groups were hoping for from their state legislature. So activists have been turning instead to the local level, what could be done there regarding fracking, and fortunately there are many tools in California that we can use to contain the effects of fracking.
"Fortunately there are many tools in California that we can use to contain the effects of fracking." – Rachel Hooper of Shute, Mihaly & Weinberger
And I’ll get to initiatives in a minute but, first of all, the local elected officials can enact zoning ordinances that regulate land uses. We all know that. But those land uses can include land uses that relate to oil and gas development. So the locals do have a role in regulating this industry. If you feel that the elected officials in your community are open to the idea of addressing these issues or are concerned about the harm caused by fracking, they are people that you should be getting in touch with to see if they would be open to amending zoning ordinances, and amending the general plan in the community to address the problem.
It would be important to develop a strategy about how to approach these officials, perhaps coming with a proposed ordinance that has worked in other communities, that sort of thing. One thing that’s being done now locally is concerned citizens are approaching their local elected officials about simply adopting a moratorium on fracking. They may not be able to achieve an outright ban on the practice but could achieve a moratorium. Moratoriums right now are being considered, for example, in the City of L.A., which directed its staff to draft a moratorium. The staff has been directed to draft a moratorium for their consideration. There are very specific state laws governing moratorium ordinances affecting land use in California. You can look up these procedures in the Government Code at Section 65858 and this section authorizes what’s called an urgency measure to hold land uses in place while the local agency is considering adopting a new land use policy regarding a certain use.
So the idea would be we need this moratorium on fracking while the local agency, the city or the county, studies how they’re actually going to regulate this practice. Moratoriums do require a four-fifths vote of the elected officials, your city council or your board of supervisors, which isn’t always easy to get. But they are adopted when this happens immediately, they take effect immediately for a period of 45 days. But they can be extended by the local elected officials up to a period of two years. So this is one thing that, again, community members are considering.
Our firm has drafted at least one moratorium for community groups to present to their local officials for consideration. If you can’t get your local elected officials to adopt a moratorium, you could consider trying to get one adopted by initiative, and we’ll talk about what it takes to do an initiative, but I think most community groups don’t think that it’s worth it to go through the whole initiative process, which is quite arduous in California, just to get a two-year moratorium. Usually they want to get something a little bit, you know, farther reaching for their efforts in passing an initiative. Sometimes you can persuade local elected officials to adopt a moratorium. And again, it can be up to a period of two years and it can be shorter to put that in place while an initiative that’s regulating fracking is circulating and then to allow time for the circulation of the initiative and then the campaign and the election. So you get the moratorium in place so that permits can’t be issued in the meantime for fracking and then the initiative is considered by the voters.
So let’s talk a minute about the citizen’s power of initiative in California because this is something to consider if the local elected officials are not interested in addressing fracking at all in your community, and the community feels there’s a real need for some sort of measure to be put in place. Fortunately, in California the initiative power is very, very broad and strong. It’s co-extensive with the local government’s power to adopt legislation.
Usually initiative measures, when you get past all the findings that support them, the actual operative provisions are very much like any other law that the local elected officials might pass. It might look like a general plan provision or it might look like a zoning ordinance.
The initiative power is robust in California because initiatives adopted in California cannot be repealed or amended except by another vote of the people, and that’s not true in many other states where you can pass an initiative by the people but then the legislative body, the elected officials, can amend it later. But in California, as probably other places as well, there are quite strict rules about initiatives. They are not something that can just be drafted at the kitchen table and circulated for signature in any informal way. I won’t go over all of the requirements for initiatives because we really don’t have time for that today, but one of the most important requirements is that a local land use initiative must actually adopt legislation and it typically will amend an existing law of the city.
And for land use initiatives we always amend the community’s general plan and you can also amend the zoning ordinance. Sometimes you’ll just do both. And it cannot be simply sort of a declaration of policy or a bill of rights, that sort of thing, just a freestanding set of principles. It actually has to be a law. It has to look like a law; it has to be integrated into the city’s laws, and it must conform to the laws that are already on the books. I mean, it can change them but, for example, if you’re amending a general plan in a community you have to amend not just one page of it. You have to go through the whole general plan and make sure that the other things that are affected by this policy are also changed, so that at the end of the day you have a fully consistent general plan.
And that makes it pretty tough on proponents of these initiatives because you can’t just cut-and-paste and use an initiative from another community and you know, just add it to the other city’s laws. You actually have to integrate the policy that you want—let’s say it’s a fracking ban—into the existing laws of the city or the county. Anyway, so once you’ve basically prepared your initiative text, you’ve designed and crafted your law—let’s say it’s some sort of ban on land uses relating to fracking—then you get a ballot title and summary from the registrar of voters. Well, actually, it’ll be from the county counsel or the city attorney through the registrar, and you start circulating your measure. And if you collect the requisite number of signatures, then it will be certified as qualifying to be placed on the ballot. Now once it qualifies, the local elected officials can actually adopt it and it will become the law of the city or the county as if it were adopted by an initiative. So it can’t be changed then except by a vote of the people. So they can actually adopt it themselves and then you’re spared a whole campaign, but more typically the elected officials will not adopt it and they’ll place it on the ballot for a vote.
For fracking measures, there are special challenges because the oil industry says that—they’re claiming now that local voters, elected officials too, really can’t regulate fracking. That it’s something that’s preempted by state law and it’s not open to the local officials, including the voters. We disagree with that claim. What our measures do, and we think is perfectly permissible, is simply regulate the land uses that support fracking operations. We’re not regulating what’s actually happening in the well, but simply the land uses that are supporting fracking and that’s perfectly permissible in our view.
And once an initiative is passed, there can be challenges of course in court but generally the judiciary defers to initiatives and will bend over backwards to uphold the people’s exercise of their right of initiative in California. So you sort of go into these cases with a lot of deference from the courts.
There are other legal pitfalls that I really will just touch on. I mean, we have to be careful that our initiatives regulating land use do not affect an unconstitutional taking of property without just compensation. We try to avoid affecting land owners’ vested rights with respect to their property and other constitutional rights. So we have to be very careful that our measures are not so onerous as to become unconstitutional. So the drafting of these measures is very important and they also have to be supported by truthful facts that will basically support the people’s right to enact these measures.
So as I mentioned before, we have drafted two initiatives for localities in California, one in Santa Barbara County and the other in San Benito County. People are welcome to look at these if you want to contact me or Heather at Shute, Mihaly and Weinberger. These initiatives amend the general plan of Santa Barbara County and the general plan of San Benito County to impose basically a ban on land uses in support of fracking.
And it was quite a task to do this, because we not only had to impose this new policy in the planned land use element, but we had to make sure that the whole general plan remained internally consistent so that this new policy kind of rippled through the plan in the correct way. We also amended the zoning ordinances in each of these counties, again to prohibit all land uses in support of fracking. We were also addressing not just fracking but other high intensity petroleum operations that are harmful in those communities.
So these measures are out there, they’re circulating, and we’re very excited. Our clients are doing well. We’re very hopeful that they will qualify. And if they do, they will be on the November ballot. So at this point I’m going to turn it over to Heather Minner and she’s going to talk a little bit more about these initiatives.
Heather: I’ll just spend about five or seven minutes talking about specifics for a community that’s interested in drafting and passing fracking ban initiatives.
The first step is to work with an attorney to draft the initiative measure, and there’s a couple initial things to consider. One is whether you want a complete ban on fracking or whether the community wants to simply limit fracking to certain zones, certain areas in the community, or limit it to a certain number of wells. We found most communities we work with are interested in doing a complete ban. And then the next question is whether to ban all oil and gas operations or just fracking and other extreme extraction techniques.
So the communities where there aren’t any oil and gas wells currently, it might actually be easier to do a complete ban of oil and gas operations. These have been done historically before and it’s kind of a more straightforward way to go and is one option to consider. On the other hand, in communities where there are currently oil and gas operations, it may just politically be easier to pass a ban that only affects fracking operations and is not banning all oil and gas operations. But that’s an initial thing to consider. The other thing to consider is whether to ban fracking or other extreme oil and gas operations such as cyclic steam injection and other enhanced recovery operations.
When we worked with Santa Barbara and San Benito, cyclic steam injection is actually happening more there than fracking is at the moment. This is a process, as many of you probably know, where steam is injected into the well to heat the ground and heat the oil to release kind of tarry, sticky oil and this heats it up and allows it to flow into the well. It doesn't necessarily inject the same toxic chemicals into the ground as fracking does but it still brings up harmful chemicals that are naturally occurring in the ground and this process can have a high well failure rate and risk of groundwater pollution. It’s also very water and energy intensive. It takes a lot of water to do cyclic steam injection and the generators to heat this produce large quantities of air pollutants that contribute to global warming and local health problems. So the bans that we’ve done so far are not only banning fracking but also enhanced recovery operations such as cyclic steam injection.
The other thing to think about when you’re drafting a fracking initiative is how to deal with any oil and gas operations that are already existing in the county, if there are any. As Rachel mentioned or sort of hinted at, you can’t immediately stop existing operations. There’s due process and constitutional “takings” concerns with that, and it may also just politically be more palatable to allow existing operations to continue. They wouldn't be allowed to do new fracking operations but if there’s existing conventional operations, they might continue. The other option is to phase out these existing operations over time or at least any existing cyclic steam injection operations, which is what our clients in San Benito County have been doing. So you have to provide the operators enough time to recover their construction costs, but after that you can require them to stop operating.
So you have a couple initial things to think about as far as how broadly to draft the ban, what to cover, how to deal with existing operations. You know, other things come up in each community. For instance, in Santa Barbara, it’s a coastal county so we had to think about how this ban interacted with offshore oil and gas operations. But once you have the initiative drafted, the actual operative part, which is, as Rachel mentioned, similar to a county ordinance. The initiative also includes findings. And these are statements about why the initiative’s necessary. What is wrong with fracking? And the findings serve a couple purposes. One is politically to be compelling and show why this is an important issue in your community. It also legally establishes why you can treat this use differently, and so you have to be careful to make sure that all the statements are backed up with cites that support the statements.
"The initiative is probably the strongest when the findings focus on what is unique about your city or county that makes fracking a really bad idea there.;" – Heather Minner of Shute, Mihaly & Weinberger
And the initiative is probably the strongest when the findings focus on what is unique about your city or county that makes fracking a really bad idea there. Courts are especially reluctant to find local measures preempted by state law when there are local interests that vary across the state. If each county or city is different with how fracking impacts them, then the courts will be more hesitant to say, ‘Well it’s up to the state to regulate.’ This was recently reiterated with the California Supreme Court upholding medical marijuana bans, interestingly enough, that in some communities crime’s a big concern, in others it’s not. So the court said we have to let communities decide how to regulate or ban medical marijuana dispensaries, city-by-city, county-by-county. That’s fine. We’re not going to find it preempted by state law.
When you’re drafting the findings, really you want to think about is there a lot of prime farmland that might be converted in your community or are there very limited groundwater supplies that there’s a higher risk of groundwater pollution there, or are there scenic landscapes that are going to be impacted, or maybe the air quality’s already really bad and you can’t have any more air pollution coming into your community. We work with our clients to try to think about what are the unique things about their community that makes fracking really bad there.
Then once you have your ordinance, the fracking ban and the findings, there’s a couple steps that Rachel mentioned working with the county to get ballot title and summary and then we also format the initiative petitions themselves, which have the initiative on the front and then the signature lines in the back, another process that’s very detailed, has detailed requirements that are spelled out in the Election Code. And then communities can gather signatures on the initiative.
For county initiatives, the initiative proponents need signatures from 10 percent of the voters that were voting in the last election for governor in order to place the measure on the next regular election, which is usually November or sometime in June. And if you want to hold the election when it’s not a regularly scheduled election, you need 20 percent of the last voters’ signatures.. For cities, if you want to place it on a regular election, you need 10 percent, signatures from 10 percent of the registered voters or 15 percent of the registered voters to hold a special election. Generally we advise clients to aim for a regular election and usually we do this in November.
So there are certain timelines in the process to sort of work backwards. And to really comfortably make all these deadlines, we generally advise local groups to start working with an attorney to draft an initiative measure in December of the year before or at least by February you want to be well along the way to finalizing your initiative. And if you get enough signatures, then you’re on your way to the campaign and you can start writing ballot arguments.
"These campaigns for local initiative measures can often be very hard fought, but we’ve found that one of the great things about local initiative measures is that … you can get a real grassroots movement that can make an impact and have their voice heard …" – Heather Minner of Shute, Mihaly & Weinberger
These campaigns for local initiative measures can often be very hard fought but we’ve found that one of the great things about local initiative measures is that people really can go door-to-door and you can get a real grassroots movement that can make an impact and have their voice heard and sort of stand up to the moneyed interests that often get involved in these local initiative measures. So that’s my quick overview of the steps for drafting and getting an initiative qualified.
Kathleen: Great. Thanks, Heather. Rachel, anything to add or should we open it up to questions?
Deborah: We can open it up but I have just one thing that I wanted to add, if it’s okay.
Kathleen: Yeah.
Deborah: The people who are listening on the call will have realized by now that we’ve been talking very specifically about using general plan and zoning and different types of laws that are currently on the books that allow people to do things and that will be enforceable in court.
"If you really want your law to be something that’s going to do the job … then it’s very important that you have good legal assistance from someone who understands the process in your state and that you work within the framework of laws that the courts will recognize as legitimate and uphold." – Deborah Goldberg, Earthjustice
And I do just want to alert people to the fact that as we’ve been saying all along, just because there’s a process that allows you to exercise local power doesn't mean that you can do just anything and have it stand up. We’ve talked about some of the takings issues; we’ve talked about due process issues. There are obviously constitutional constraints on what you can do in this process. So it’s very important that, if you really want your law to be something that’s going to do the job, that’s not going to just be a symbolic statement, that’s really going to keep the industry out where you don’t want it, then it’s very important that you have good legal assistance from someone who understands the process in your state and that you work within the framework of laws that the courts will recognize as legitimate and uphold. There are some alternative ways of approaching this that make much stronger political statements, but they aren’t really geared to be enforceable measures that will really keep the industry out. And so I just want to make sure that people understand the difference between those two things.
In New York, Helen and her husband, David, worked very hard to make sure that towns understood that there was a way that they could legally do this and actually have it stand up. We didn't want to see people sidetracked into efforts that ultimately would get defeated if they got challenged.
And so just a word to the wise and a recommendation that you really seek out good legal assistance as you go into this process so that you have some real confidence that what you come out with is something that will stand up if the industry decides they are going to take you to court.
Rachel: And this is Rachel, if I may chime in on this. I think that’s an excellent, excellent piece of advice and yes, there are very arduous requirements regarding especially initiative measures, procedurally and substantive, I mean, just talking about the constitutional constraints and so forth.
But in California, we especially worry about making sure, as I said before, that the measure adopts actual legislation. And in California, the general plan is the preeminent land use document in every community, and every other land use law has to be consistent with the general plan.
And so frequently there will be initiatives that are invalidated because the proponents didn't amend the general plan or they did it but only sort of halfway, didn't make sure the whole general plan was consistent and instead maybe just amended the zoning ordinance or if the community has a petroleum ordinance, just amended that. And those measures could be invalidated and it’s just such a shame if the activists have gone to all the trouble to collect the signatures and go through a whole campaign to find out that their measure’s invalid because they didn't amend the right law or they didn't do it in the right way. So I echo that advice.
Kathleen: All right. Thanks, everyone so much, for joining and listening in and thanks to all of our presenters for sharing their information with all of us. Thanks everyone.
Spotlight Features
This is an industry that’s managed to secure for itself exemptions from most of the major federal environmental laws that usually constrain heavy industrial activities