Colo. court strikes down city’s fracking ban
E&E News | Ellen M. Gilmer and Mike Lee
July 25, 2014
A Colorado court yesterday ruled against the city of Longmont in a fight with state and industry officials over whether the city could ban hydraulic fracturing.
The decision could weigh heavily on voters considering potential anti-fracking ballot initiatives in Colorado in November. And the outcome swings the local control pendulum in favor of industry after a series of wins for municipalities in Pennsylvania and New York over the past year (EnergyWire, July 1).
A coalition of environmental groups said it will appeal the decision.
The case centered on Longmont's 2012 decision to ban fracking and wastewater disposal within city limits through a voter-passed amendment to the city charter. Longmont argued that its status as a "home rule" municipality in Colorado gave it broad authority to legislate local issues where state officials had failed to regulate. The city argued that because the Colorado Oil and Gas Conservation Commission (COGCC) does not issue fracking permits or require fracking-specific operating procedures, the state left the field open to additional municipal rules.
In a summary judgment handed down yesterday, the court rejected the argument, finding that state law comprehensively regulated the oil and gas industry, including fracking, effectively pre-empting local rules.
"The Court does not see a problem with this arrangement," the opinion said. "The purpose of the agency is to provide oversight of the industry, not to micromanage it."
In its analysis, the court found that Longmont's regulations conflicted with state law that requires the COGCC to prevent waste of oil and gas. Longmont's ban caused waste because it left mineral deposits in the ground that could otherwise be extracted from existing wells through fracking, the judgment said.
The COGCC did not respond to a request for comment, but at a recent conference, Director Matt Lepore defended the mission of his agency and stressed that it remains independent.
"We are not an industry marketing arm or an industry cheerleader," he said last week. "Yes, we can foster development and protect public health at the same time."
The Colorado Oil and Gas Association, which initiated the case against Longmont, celebrated the ruling.
"The ruling today is not just a win for the energy industry but for the people of Colorado," said COGA President Tisha Schuller in a statement. "The decision demonstrates that the rule of law will prevail in how Colorado oversees one of the most important industries in this state."
The Longmont judgment allows the ban to remain in place while the city considers an appeal.
An attorney representing Longmont did not respond to a request for comment.
"The judge has invited us to seek the change we need either through the higher courts or the legislature," Bruce Baizel, energy program director for Earthworks, said in a statement issued by three environmental groups.
Colorado is among at least eight states where cities and counties are fighting the state over control of oil and gas operations.
The local governments won in Pennsylvania when the state Supreme Court decided their zoning codes weren't pre-empted by the state. Likewise, a New York court ruled that the state can control how drilling is conducted, and local communities can control where. The Ohio Supreme Court heard arguments in February in a similar dispute over a zoning case in Munroe Falls (EnergyWire, Dec. 20, 2013; EnergyWire, July 7).
In New Mexico, a ban on hydraulic fracturing in Mora County is being challenged in federal court.
In Texas, the Dallas City Council voted in November to ban drilling within 1,500 feet of homes, leading to a lawsuit by a driller. About 40 miles away, voters in Denton, Texas, will decide in November whether to impose a total ban on fracking (EnergyWire, July 16).
In California, six local governments have adopted or are working on fracking bans. Organizers in Michigan may reintroduce a petition drive to ban fracking in 2015.
Yesterday's Colorado decision will likely add fuel to the statewide debate there over local control of oil and gas drilling, which is moving closer and closer to populated areas along the state's Front Range.
"Eventually, all of this is going to go to the voters," said University of New Mexico law professor Alex Ritchie, who tracks shale development litigation nationwide. "Will this impact what happens in November? I think it could."