• The Colorado Supreme Court today upheld decades of state law that places authority over hydraulic fracturing, or fracking, squarely in the hands of state officials.
    The court ruled in a pair of cases, which garnered national attention, aimed at voter-approved bans on fracking in Fort Collins and Longmont.

    fracking rig
    A rig close to a resident’s backyard.

    In the case of Fort Collins, where voters in 2013 approved a five-year moratorium on fracking in the city, the court ruled that “Fort Collin’s five-year moratorium on fracking and the storage of fracking waste operationally conflicts with the effectuation of state law. Accordingly, we hold that the moratorium is preempted by state law and is, therefore, invalid and unenforceable,” the decision read.

    In Longmont, where voters approved a ban on fracking in the city in 2012, the court used identical language. Ultimately finding that “Longmont’s fracking ban is preempted by state law and therefore, is invalid and unenforceable.”

    Justice Richard Gabriel delivered the opinion of the court.
    In early reaction to the ruling, Tracee Bentley, executive director of the Colorado Petroleum Council, in a statement “welcomed the decision by the Colorado Supreme Court to uphold the state’s primacy in overseeing oil and natural gas permitting.”

    Bentley said the court’s decision “curtails arbitrary bans on hydraulic fracturing that could cost local jobs, deprive state and local governments of much-needed tax revenues, and limit access to critical energy resources.”
    Oil and gas operations in and around communities along Colorado’s northern Front Range have been a flashpoint of controversy in recent years, with energy companies implementing new strategies for reducing their impact and local residents worried about traffic, dust, noise and health impacts from drilling operations near their homes.

    The two cities were part of a group of communities, including Boulder, Broomfield and Lafayette, that sought to restrict oil and gas operations.
    Fort Collins and Longmont were sued by the Colorado Oil & Gas Association in separate legal cases. The Supreme Court justices heard hour-long oral arguments in each of the two cases in December.

    Longmont also was sued by the Colorado Oil and Gas Conservation Commission, the state agency that regulates the industry, and TOP Operating Co., a Lakewood oil and gas firm that has mineral rights to oil and natural gas resources underneath that city.

    Several environmental groups joined Longmont in supporting the ban, including Food and Water Watch, the Sierra Club, Earthworks and a local group called Our Health, Our Future, Our Longmont.

    Fracking, used in more than 90 percent of the oil and gas wells drilled in Colorado and nationwide, uses a high-pressure mix of water, sand and chemicals to crack underground rock formations to allow oil and natural gas molecules to flow into a well.

    The industry says its safe, but it’s been the target of local officials, residents and anti-fossil fuel activists who worry about the health and environmental impacts of oil and gas operations near homes and schools as well as the wider affect of the greenhouse gases released when the fuels are burned.
    The pair of cases were closely watched across the nation, as Colorado is considered on the forefront of oil and gas regulations aimed at smoothing conflicts between the multibillion-dollar industry and local communities.

    Questions over which level of government — state agencies or local officials — has authority over industry operations have lasted for decades in Colorado.

    And the Colorado Supreme Court weighed in on the issue in 1992, when it issued rulings in a pair of cases called Voss v. Lundvall Bros Inc. and the La Plata County Commissioners v. Bowen/Edwards Associates Inc.

    In 1992, Colorado’s highest court held that local governments couldn’t preempt the state’s need to ensure the efficient development of its resources; the Voss decision also overturned a voter-approved ban on drilling oil and gas wells in Greeley.

    In the latest legal battle over the issue of authority, representatives from local governments have argued they have authority over what happens inside their jurisdictions, and that the industry’s technology has changed over the years — making the 1992 decisions obsolete. Fort Collins officials also argued their city’s five-year moratorium — to study the impacts of oil and gas operations — is different from a complete ban.

    In addition to voter-approved bans in Longmont and Fort Collins, bans also were approved in Boulder, Broomfield and Lafayette.

    The Lafayette ban was ruled illegal by a district court judge because it violated the state’s authority; the city decided not to appeal the ruling.
    A suit against Broomfield’s five-year moratorium has been suspended pending the outcome of the Fort Collins and Longmont cases.
    The city of Boulder’s ban hasn’t been challenged in court.

    Boulder County commissioners implemented a moratorium on accepting oil and gas permits for review in 2012 in order to study the matter. The moratorium has been extended and currently is scheduled to end in July 2018.

    Cathy Proctor covers energy, the environment and transportation for the Denver Business Journal and edits the weekly “Energy Inc.” newsletter. Phone: 303-803-9233. Subscribe to the Energy Inc. newsletter


    Posted by Dana West @ 10:19 am for Colorado politics, Energy, Issues, Legal Issues |

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