Grassroots citizen-activist groups seeking more local control of oil and gas drilling are touting a Gunnison County District Court decision earlier this month finding “there is no express or implied preemption” of local regulations by the state of Colorado.
The Colorado Oil and Gas Conservation Commission (COGCC) has long contended its oil and gas drilling regulations trump any county or municipal rules and that the state attorney general may ultimately have to decide any such conflicts. The COGCC contends its supremacy stems from a state legislative mandate.
This month’s Gunnison County ruling comes as lawmakers consider legislation that would give more authority to cities and counties as oil and gas drilling – and its commonplace hydraulic fracturing of wells – picks up in the Niobrara Shale formation along the state’s populous Front Range.
Activists today announced a new Twitter hashtag (#CoFracking) to make it easier to follow such legislation and any news about local versus state control of oil and gas drilling.
On Jan. 3, Gunnison County District Judge Stephen Patrick issued an order on cross motions for summary judgment in a case brought by the oil and gas company SG Interests, which last summer sued Gunnison County. The company claimed the county could not regulate certain aspects of its operations because of preemption by state and federal regulations.
But Patrick ruled that “there is no express or implied preemption,” referring back to a 2003 case in which the drilling company BDS International challenged Gunnison County on the same grounds. “The Court is persuaded that [Gunnison County v. BDS International] is still good law and has not been limited or reversed by subsequent cases or statutory changes,” Patrick wrote (pdf).
“This is a huge win for the Colorado public and its local governments, acknowledging that preemption is not assumed,” writes Sonia Skakich-Scrima of the activist group What the Frack. “In effect, local governments can proceed to argue that closed-loop systems that capture all gases and emissions, sound barriers, non-toxic frack fluids and other mitigating measures do not present ‘material obstructions’ to the state’s interests, but rather that they ‘materially harmonize’ the local government need to control land use and protect public health and safety with the state’s interest in oil and gas extraction.”
However, Governor John Hickenlooper, in his State of the State address last week, warned against too many local regulations, saying, “… the state can’t have 64 or even more different sets of rules.” Colorado has 64 counties.
Industry representatives are also nervous about too much local control. The same day as the Gunnison County ruling, Tisha Conoly Schuller, president and CEO of the Colorado Oil and Gas Association (COGA), posted a blog entitled “Why Public Meetings Make Me Nervous.” She said she empathizes with the concerns, fear and anger of local citizens living near oil and gas drilling.
“So much emotion deserving of empathy,” Schuller wrote. “So much misinformation and little to no opportunity to correct it. The impotence of seeing scared citizens and uncertain decision makers taking in so much inaccuracy drives the blood to beat in my ears. In three minutes, how can I inspire them to look further, question the information, and participate in the conversation about responsible energy development?”
SG Interests is also at the heart of an ongoing debate on the Western Slope about drilling in the Thompson Divide area.