Cities can’t ban fracking, Colorado Supreme Court rules
The Colorado Supreme Court ruled today voters cannot enact local fracking bans.
The ruling applied to two cases, one over a 2012 ban on fracking in Longmont and another over a five-year fracking moratorium in Fort Collins passed in 2013, both approved by voters.
Fort Collins and Longmont are home rule cities where citizens have the right to change the municipal constitution. In both cases, the Colorado Oil and Gas Association sued to overturn citizen decisions.
Lower courts in Boulder and Larimer County put both measures on hold. The Colorado Court of Appeals chose not to make a decision on either case and sent both lawsuits to the state Supreme Court.
Last December, the state’s highest court heard both cases.
The Court’s opinion on the Longmont ban, written by Justice Richard Gabriel, cited a lower District Court ruling that the Oil and Gas Conservation Act, a state statute, holds sway over Longmont’s fracking ban.
The Court acknowledged the confusion created by previous rulings over whether a home-rule city could reject a state law.
“We have consistently said that in matters of local concern, a home-rule ordinance supersedes a conflicting state statute,” according to the opinion. However, in cases where a home-rule ordinance conflicts with “a statewide or mixed state and local concern,” the state law rules.
In Colorado, the state has traditionally regulated the energy industry while acknowledging local governments have zoning authority. The Colorado Oil and Gas Conservation Commission, under the state Department of Natural Resources, regulates fracking statewide.
Because the local bans concern both state and municipal law, state rules take precedent, the Court ruled.
Gabriel, also writing the majority opinion on the Fort Collins case, used much of the same justification, citing a prevailing need for statewide oil and gas regulation.
Dan Haley, president of the Colorado Oil and Gas Association, which sued over the bans, said this morning’s ruling signals “a good day for the Colorado economy” and for about 100,000 families whose livelihoods depend on the oil and gas industry.
Conservation Colorado, which filed a brief in support of Fort Collins’ fracking moratorium, decried this morning’s ruling.
As Executive Director Pete Maysmith tells it, local communities “are best-suited to make decisions about what happens with oil and gas drilling within their borders.” Those communities should be able to call a “timeout” on drilling to “better understand its impacts and ensure safety and public health, just as they are allowed to do with other industries.”
Maysmith said the fight for local control will continue.
There are at least five statewide ballot measures related to fracking proposed for the November 2016 election, with at least two of them dealing directly with the rights of local governments to regulate oil and gas development within their boundaries.
Congressman Jared Polis, who also submitted a brief in support of the bans, called the decision “bad” and said it was a “blow to democracy and local control.” The Boulder Democrat pledged to support the anti-fracking measures working their way to the ballot.
“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,” Polis said.
Haley said the rulings send a strong message to those pushing for the ballot measures. If those proponents “want to continue down a losing path, disrupt the economy and shred the private property rights of tens of thousands of Coloradans,” today’s Court rulings say “this is not how we do business in Colorado.”
There are at least two other fracking moratoriums that haven’t yet been challenged in the courts: a five-year temporary ban in the city of Boulder and a moratorium in Boulder County that has been extended to 2018.
Mark Mathews, an attorney with Brownstein, Hyatt, Farber and Schreck who argued COGA’s case at the Court, said the ruling should put an end to local governments enacting regulations that conflict with those from the Colorado Oil and Gas Conservation Commission.
“A lengthy trial will no longer be required,” Mathews said.
Haley said that both Boulder County and the City of Boulder should voluntarily withdraw their bans, as they are now “plainly illegal.”
“The ruling is very clear.”
Photo credit: Erie Rising, Creative Commons, Flickr.
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