Colo. high court quashes local fracking bans

By Ellen M. Gilmer | 05/02/2016 01:13 PM EDT

Local bans on hydraulic fracturing are officially a no-go in Colorado.

In two related decisions today, the state Supreme Court ruled that city fracking bans conflict with state law and cannot be enforced. The rulings uphold two lower-court decisions striking down a ban in Longmont and a moratorium in Fort Collins.

According to the justices, local governments cannot block fracking because the Colorado Oil and Gas Conservation Act prioritizes uniform regulations and efficient development of resources.

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"For these operators, banning fracking would result in less than optimal recovery and a corresponding waste of oil and gas," Justice Richard Gabriel wrote in the Longmont opinion. "Moreover, such a ban could adversely impact the correlative rights of the owners of oil and gas interests in a common source or pool by exaggerating production in areas in which fracking is permitted while depressing production within Longmont’s city limits.

"And Longmont’s fracking ban could result in uneven and potentially wasteful production of oil and gas from pools that underlie Longmont but that extend beyond its city limits," he added.

Similarly, Fort Collins’ five-year moratorium on fracking is pre-empted by state law because the city’s local concerns about the process do not override the state interest in promoting and regulating oil and gas production, Gabriel wrote in the decision for that case.

The rulings cap many years of litigation on the issue. The conflict began in 2012 when Longmont residents responded to growing shale development in the region by passing a ban on the oil and gas production process. Several municipalities followed suit, including Fort Collins, which passed a moratorium in 2013.

The Colorado Oil and Gas Association sued over both cities’ measures, and state regulators joined the challenge against Longmont’s ban — arguing that the local governments were overstepping their authority. District courts ruled against the cities in 2014, and the Colorado Supreme Court took on the issue last year (EnergyWire, Dec. 10, 2015).

The decisions drew a sigh of relief from the oil and gas industry and criticism from environmental groups that worked to defend the ban.

"We’re still reviewing them, but we’re disappointed by the decisions," Earthjustice attorney Michael Freeman said in an email. "Fort Collins and Longmont lie right on the edge of some of the most heavily fracked areas of Colorado, where drill rigs have gone up next to elementary schools and in the middle of residential neighborhoods.

"These two cities have seen the oil and gas industry routinely contaminate rivers, streams and land in nearby areas with spills of toxic fracking wastes," he added. "Local governments should be able to use their authority to ensure that fracking doesn’t cause the pollution, 24-hour noise and semi-truck traffic that have occurred in numerous Colorado communities."

Earthjustice represented Conservation Colorado in an amicus brief supporting the Fort Collins moratorium. Freeman vowed that communities will find other ways to protect residents from the impacts of oil and gas development, saying "these rulings are not the end of the story."

Earthworks energy program director Bruce Baizel, meanwhile, slammed the decisions as an affront to the voters who passed the Longmont ban.

"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," he said in a statement. "Turning democracy on its head, today’s ruling prohibits local communities from deciding whether and how to balance their health against the fracking industry’s profits."

Earthworks, the Food and Water Watch, the Sierra Club, and the grass-roots group Our Health, Our Future, Our Longmont helped defend Longmont’s ban in the city’s appeal.

The Colorado Oil and Gas Association celebrated the decisions as a victory for both the industry and Colorado residents.

"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," COGA President and CEO Dan Haley said in a statement. "It sends a strong message to anyone trying to drive this vital industry out of the state that those efforts will not be tolerated at any level."

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