need not be feared
Monday, April 07, 2014 4:28 AM
Winneshiek County is indeed a beautiful and healthy place to live and visit. In fact, the Robert Wood Johnson Foundation recently designated Winneshiek County as the eighth healthiest in the whole country. The threat of frac sand mining on the health and beauty of the county is real, and I am glad to see the supervisors taking this threat seriously.
As they consider their options, it is important to understand that Winneshiek County is more likely to get sued with a regulatory approach of trying to zone frac sand mining out of the county than if a rights-based ordinance is adopted. This is the case because corporate lawyers are used to attacking regulations that try to stop them, but are much less comfortable with attacking the fundamental rights of citizens.
I can see that the county supervisors are hesitant to adopt a ban on frac sand mining by including it with a list of the rights of the citizens because it is an unfamiliar path. The fact that it is unconventional is exactly the reason why they need to go this route. All over the country, time and time again using the regulatory approach to stop detrimental corporate activities has failed. That deck is stacked in their favor and Winneshiek County has very little chance of winning if the supervisors play their game. No matter how amazingly well the county is zoned with multiple over-laps of areas closed to frac sand mining, corporations will sue their way into the county.
The other, less familiar option is for the supervisors to declare that the citizens of Winneshiek County have a right to clean water and air, and that frac sand mines are not allowed here because they will jeopardize those fundamental rights. Luckily, declaring rights is not just unfamiliar to the supervisors, but also to the corporate lawyers, making it less likely that they would attempt a lawsuit.
This new approach needn't be feared. This ordinance won't ban anything but frac sand mining. Several fundamental rights are declared with the community rights ordinance, but it only bans one activity and that is frac sand mining. It doesn't ban anything else, or weaken any rights set aside by the state or federal constitutions. Just as states can only strengthen rights granted by the feds, the county can only strengthen rights. There are lots of examples around the country where this approach is working and it can also work in Winneshiek County.
Ban frac sand mining, rather than opening the door with the old familiar permitting and regulatory zoning approach.