Can Cities Ban Fracking? Colorado's Supreme Court Will Decide.

by | September 23, 2015

By Karen Antonacci

The Colorado Supreme Court on Monday announced that it will hear Longmont's fracking ban case.

The ban on hydraulic fracturing, or fracking, was added to the city charter by voters in 2012 but overturned by a district court judge last year when challenged by industry group Colorado Oil and Gas Association.

The City Council chose unanimously to appeal the decision, but in August, the Colorado Court of Appeals asked the state's supreme court to weigh in on Longmont's case and Fort Collins' five-year fracking moratorium. The Court of Appeals said the two cases had such broad potential implications for the state that it was more appropriate for the state's highest court.

On Monday, the Colorado Supreme Court also announced it would hear Fort Collins' case.

Hydraulic fracturing, or fracking, injects a high-pressure mix of water, sand and chemicals underground to break open formations and make it easier to recover oil and gas. It's a widespread practice that led to an energy boom.

Opponents worry about health and environmental effects. The industry says it's safe.

Longmont Mayor Dennis Coombs said he was thrilled to hear that the fracking ban instituted by voters would go before the state's highest court.

"Now the people in the black robes will hear it, which is how it should be," Coombs said.

Coombs also said that even if the Colorado Supreme Court overturns the fracking ban, he's still proud of Longmont's oil and gas regulations. The regulations were instituted by City Council, rather than voters, and survived a lawsuit as a part of a larger comprosmise between local government and the oil and gas industry.

"I think the oil and gas regs protect 90 percent of the city, even if this gets knocked down by the (Colorado) Supreme Court," Coombs said.

Kaye Fissinger, president of Our Health Our Future Our Longmont, echoed Coombs' comments. Our Health Our Future Our Longmont is an anti-fracking organization that signed on as an intervenor in the case in support of the city.

"Our Longmont is delighted to learn that the Colorado Supreme Court has decided to hear the case involving Longmont's charter amendment that prohibits hydraulic fracking and the disposal of its waste products with city limits," Fissinger said in a written statment. "This is an issue with profound consequences for our community and its residents."

Among the next steps: Various sides in both of the cases will file briefs, and the court will set a schedule for public oral argument. In oral argument, each side has a set amount of time to make its case while being questioned by Colorado Supreme Court justices.

From there, it's up to the state court to decide how quickly to hear the case.

There are two important Colorado Supreme Court cases that are relevant to Longmont's fracking case, and both were decided on the same day in 1992: Voss. v. Lundvall Bros. Inc and Bowen/Edwards Associates Inc. v. the Board of County Commissioners of La Plata County.

Voss (the name of the Greeley city clerk at the time) occurred when Greeley voters implemented a ban on drilling oil and gas wells. Lundvall Brothers and other oil companies in the city sued, and, after an appeal, the Colorado Supreme Court found in favor of Lundvall.

Justice Joseph Quinn said in the opinion that while a city still had some authority over drilling in its limits, because there was a "statewide interest in the efficient development and production of oil and gas resources," a city could not totally ban the practice altogether.

In Bowen/Edwards, an oil company disagreed with La Plata County's regulations requiring oil and gas developers to obtain permits. In that case, the state's highest court found in favor of the county, saying that the county was within its rights to add on regulations as long as the regulations didn't conflict with the state's.

The Associated Press contributed to this report.

(c)2015 the Daily Times-Call (Longmont, Colo.)