|November 19, 2013|
Previously published on November 14, 2013
Voters in three Colorado municipalities have adopted new bans on oil and gas hydraulic fracturing operations, raising the stakes for the upcoming legislative session and for pending lawsuits challenging fracing bans previously adopted by another Colorado municipality.
On November 5, 2013, voters in Boulder, Fort Collins and Lafayette overwhelmingly agreed to extend existing restrictions or to adopt new bans on fracing operations for wells drilled within their city limits. In Boulder, the voters extended a five-year ban on fracing operations. Voters in Fort Collins also adopted a five-year ban, while the electorate in Lafayette approved a permanent ban. In Broomfield, voters narrowly defeated a ban on fracing. These actions are not unique to Colorado. Restrictions and bans have been adopted by state and local governments elsewhere including Pennsylvania, New York and Ohio.
These votes are the latest activity in a long-standing clash between the oil and gas industry and anti-fracing groups. Absent clear action by the Colorado Legislature, the issues will likely be resolved in court.
When the City of Longmont in 2012 adopted a local ordinance regulating oil and gas drilling and operations, and later that year voted to ban hydraulic fracing, the Colorado Oil and Gas Association (COGA) and the Colorado Oil and Gas Conservation Commission (COGCC) sued. Both cases are now pending in the District Court of Boulder County, with Earthworks and the Sierra Club intervening in the COGCC suit in support of the bans.
The COGCC is the state agency charged with government supervision of the oil and gas industry. COGA and COGCC argue that the City of Longmont’s actions are preempted by state regulation as set forth in the Colorado Oil and Gas Conservation Act, Colo. Rev. Stat. §§ 34-60-102 et seq. (the COGC Act) and rules adopted by the COGCC. A separate challenge based upon impermissible public taking of private property was dismissed by the court.
The preemption argument is based upon the expressed purpose of the COGC Act to make oil and gas development subject to state regulation by the COGCC. However, since the City of Longmont has adopted a home rule charter, the City argues that the issues involve matters of mixed local and state concern requiring application of a multi-part judicial analysis. If the court finds that there is no conflict between the City of Longmont’s Ordinance and the COGC Act, and that the City’s regulation can be harmonized with development and production of oil and gas consistent with the goals and purpose of the COGC Act, then the City’s regulation would be allowed to stand.
While previous decisions of the Colorado Supreme Court would seem to be against the City’s position, anything is possible given Colorado’s mixed and unsettled attitudes toward the oil and gas industry.