Local Fracking Ban Struck Down by Colorado's Highest Court

by | May 3, 2016

By Karen Antonacci

The Colorado Supreme Court on Monday struck down Longmont's fracking ban.

The ban on fracking and disposing of fracking wastes within city limits conflicts with state law, the court said in its opinion.

"Accordingly, the court holds that Longmont's fracking ban is preempted by state law and, therefore, is invalid and unenforceable," the opinion said.

A ban on hydraulic fracturing, or fracking, was added to Longmont's city charter by voters in 2012 but overturned by a district court judge in 2014 when the city was sued by the Colorado Oil and Gas Association. Top Operating joined the lawsuit against the city while four environmental groups joined Longmont's side.

Colorado Supreme Court Justice Richard Gabriel delivered the opinion of the court, systematically breaking down all of the city of Longmont's arguments. Gabriel acknowledged that fracking -- in which water, sand and chemicals are injected at high pressure to break open underground formations -- is a controversial topic.

But the court isn't meant to resolve the controversy between hydraulic fracturing proponents and opponents. Rather, the justices had to consider the narrower legal question of whether Longmont's ban interfered in a significant way with state law.

The unequivocal answer is yes, Gabriel wrote.

"Even were we to accept the argument that fracking is not the only way to produce oil, gas or other hydrocarbons, it appears undisputed that fracking is now standard for virtually all oil and gas wells in Colorado," Gabriel's opinion said. "Longmont's ban, if left in place, could ultimately lead to a patchwork of regulations that would inhibit the efficient development of oil and gas development."

Plus, the ban could have cost mineral rights owners missed profits and could have encouraged other cities to ban fracking as well, "which could ultimately result in a de facto statewide ban," the opinion said.

The Colorado Supreme Court's decision will have a broad effect on other Colorado cities and counties with their own fracking bans and moratoria.

Both the city of Boulder and Boulder County have moratoria in place on oil and gas applications. Broomfield has a five-year moratorium on fracking and faces a Colorado Oil and Gas Association lawsuit, just like Fort Collins. Like Longmont, Lafayette had a fracking ban put in place by voters that was overturned after a COGA lawsuit.

Longmont, and local governments, did have a small victory out of Monday's decision. The court affirmed "Longmont's traditional authority to exercise its zoning authority over land where oil and gas development occurs."

This strengthens oil and gas regulations Longmont already has in place, which rely on the city's land zoning authority to, among other things, forbid drilling in a residential zone but allow a driller to ask for an exception if it would make it impossible to access their mineral rights.

The regulations were approved by the Longmont council in 2012, ahead of the citizens' vote on the outright fracking ban. The state regulating entity Colorado Oil and Gas Conservation Commission sued Longmont over the regulations. COGA joined the suit against Longmont but dropped the case in 2014 as part of a compromise brokered by Gov. John Hickenlooper before the 2014 election.

Additionally, the Colorado Supreme Court disagreed with the environmental groups that intervened in the fracking ban case on behalf of Longmont. The groups argued the state constitution's guarantee of "enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness" gives citizens a right to ban fracking.

But, Gabriel wrote, that would mean that local regulations would always supercede state law and render the home-rule provision of the state constitution unnecessary "and we cannot countenance such a result."

Fracking critics hope to get at least five measures on the November ballot to amend the state Constitution to restrict the industry or allow local governments to do so. The industry has said it will fight those proposals, according to the Associated Press.

Reaction

COGA CEO and President Dan Haley praised the decision in a news release and later on a conference call with reporters.

"COGA has always maintained that these bans and moratoriums on responsible oil and gas development are illegal, and we're pleased that today the Supreme Court of Colorado has agreed with us," Haley said in the statement. "This is not just a win for the energy industry but for the people of Colorado who rely on affordable and dependable energy and a strong economy."

When the state and COGA dismissed the oil and gas regulations case in 2014, it was with the agreement that they could never again sue the city over the same regulations, which still remain in effect.

Haley stressed that he would like to "re-engage with the city of Longmont" and added that COGA needs to talk to the city about the oil and gas regulations the council passed in 2012.

"This is the time right now to sit down as stakeholders, as oil and gas industry citizens, as mineral rights owners and as surface rights owners to develop some trust and find solutions that work for all of us."

Mark Mathews, COGA's special counsel, said that Monday's decision clarifies how Colorado Courts will look at regulations like Longmont's.

"A lengthy trial is no longer required," Mathews said. Analysis of the regulations on their face "is all that will be required in virtually all instances. It means the courts will compare the state regulations to the local government regulations. ... I think it will guide Longmont's future development."

Longmont Mayor Dennis Coombs said via a city news release that while the case did not end as Longmont had hoped, they intend to respect the court's decision. Coombs reiterated in the release that Longmont's existing oil and gas regulations protect a large portion of the city.

"Longmont has secured important protections for the community including no drilling in neighborhoods, mandatory groundwater monitoring, setbacks from riparian areas and other important regulations that will protect the health and safety of our residents," Coombs said.

Longmont Spokesman Rigo Leal clarified via email that because the ban was put in place by voters as a charter amendment, only voters could remove it from the city charter. As of Monday, the ban will no longer be enforced in Longmont, Leal said.

Food & Water Watch, one of the groups that filed as citizen intervenors in support of Longmont on the fracking ban case, released a joint statement with other organizations that said the Colorado Supreme Court decision "strips all Coloradans of their Constitutional right to say no to fracking in their communities."

"The state has declared that fostering oil and gas development is in its interests," said Kaye Fissinger, president of fellow intervening group Our Health, Our Future, Our Longmont. "That the court apparently equates a government interest superior to human rights is a severe slap in the space. Our country's founding fathers are most certainly turning over in their graves."

The Sierra Club and Earthworks both also intervened on Longmont's behalf in the case.

"Straight out of Orwell's 'Animal Farm,' the Colorado Supreme Court just decided that the oil and gas industry is 'more equal' than other industries," Earthworks energy program director Bruce Baizel said the statement.

Karen Dike, representing the Sierra Club, said, "The ruling places profit of corporations before people and will allow the continuing onslaught of this dangerous industry."

U.S. Rep. Jared Polis (D-Boulder) said in a statement he was disappointed in the court's decision but was encouraged by the local land use authority language in the decision.

"It's a blow to democracy and local control," Polis said in the statement. "Now that the law has been interpreted, it's up to the state legislature or the people of Colorado to act to protect our neighborhoods and homes. I look forward to continuing to help advocates in these efforts to protect our communities."

State Rep. Mike Foote (D-Lafayette) said in a statement on his Facebook page that he was also disappointed yet encouraged by the land use language.

"Local governments and their residents should have a meaningful say in what happens in their neighborhoods. Nothing in this opinion changes that possibility," Foote wrote. "Certainly nothing in the opinion will do anything to slow down the ballot measures and their signature gathering efforts."

Vital for Colorado, a business association, celebrated the decision.

"The oil and natural gas industry has a tremendous impact on our small and large businesses, nonprofits and labor organizations," Vital for Colorado boardmember and South Denver Metro Chamber of Commerce President Bob Golden said in a news release. "This certainty following today's decision should help with Colorado's energy recovery by getting people back to work and producing more opportunities for supporting businesses and contractors."

The Colorado Petroleum Council released a statement to the same effect, saying the decision was good for the economy and consumers.

"Today's decision protects private property rights, which are a main driver the for the energy renaissance in this country," Colorado Petroleum Council Executive Director Tracee Bentley said in a news release.

The Colorado GOP Press Office released a statement calling the decision "an enormous win for individual property rights and responsible resource development in Colorado."

Colorado Republican Committee Chairman Steve House said in the news release that "It is outrageous certain far-left extremists continue to peddle baseless psuedoscience to directly attack the livelihoods of middle-class Coloradans."

Haley, of COGA, said the industry group spent roughly $1 million on its various legal cases with Longmont, Lafayette, Broomfield and Fort Collins.

Leal, with Longmont, said to date the city has spent $192,028 on special counsel costs associated with the fracking ban case. The city spent $166,134 on special counsel costs associated with the dismissed oil and gas regulations case. Neither total includes salaries of city attorney's office employees, but they do both include administrative fees and other costs, Leal added.

(c)2016 Daily Times-Call (Longmont, Colo.)