On Dec. 4, Boulder County District Court Judge Nancy W. Salomone reversed an earlier decision to reopen the 2014 case involving an oil and gas drilling ban in Longmont. The ruling was based mostly on process and did not reach a conclusion about the merits of the case. Colorado Rising plans to file another lawsuit to reinstate the drilling ban.
Anti-fracking advocates hope to reinstate a ban on oil and gas drilling in Longmont, a move that could test the limits of just how much say local governments have over drilling in light of recent oil and gas regulatory changes.
Backers of the ban say drilling must be stopped to stave off health risks associated with poor air quality along the Front Range, which is in part caused by oil and gas drilling. Fracking releases volatile organic compounds, an ingredient in smog, and methane, a planet-warming gas.
Colorado Rising, the group behind a failed statewide drilling setback measure in 2018, and Our Longmont, the group that helped pass the 2012 charter amendment banning drilling in Longmont, filed a motion Wednesday morning asking the Boulder County District Court to lift a 2016 Colorado Supreme Court injunction that effectively struck down the drilling ban.
The legal effort will have a relatively small impact on Longmont, which has one pending well pad permit, according to the Colorado Oil and Gas Conservation Commission. But the legal effort could have far-reaching implications for other cities and counties that want to impose stringent limits on drilling within their borders.
“This case is precedent-setting,” said Joe Salazar, a former state representative and now an attorney with Colorado Rising, during a news conference at the state Capitol Wednesday.
In 2012, voters passed Question 300, which banned drilling in Longmont, by nearly 20 percentage points. The Colorado Oil and Gas Association, or COGA, and TOP Operating Company, an oil and gas company, sued the city. Two years later, the Colorado Supreme Court stifled the ban, ruling the charter amendment was in “operational conflict” with a state law that sought to “foster” the development of oil and gas across the state.
But Senate Bill 181, which launched an overhaul of the state’s oil and gas regulations, repealed the provision in Colorado law promoting oil and gas development. The new law also gives local governments authority to write regulations that are “more protective or stricter than state requirements.”
But cities and counties along the Front Range have been treading cautiously with new regulations. An effort to ban drilling could result in a lengthy legal battle. It could also set a precedent for just how far — or not — communities can go with their regulations. In addition to Longmont, at least seven cities and counties have enacted drilling moratoriums: Adams County, Berthoud, Boulder County, Broomfield City, Lafayette, Superior and Timnath.
Democrats who helped write the law said the bill does not ban oil and gas drilling. House Speaker KC Becker, a Democrat from Boulder, said claims the law would ban drilling amounted to misinformation.
Becker declined to comment on the legal motion Wednesday. Three other lead bill sponsors either declined to comment or did not return requests for comment.
Jeff Robbins, the director for the Oil and Gas Conservation Commission, which oversees the industry, has said he does not believe the bill allows local governments to enact drilling bans. He maintained that position Wednesday.
“SB 181 gives local governments a voice and the opportunity to make decisions on what’s best for their communities while putting health and safety first,” he said in a statement. “This bill does not have the intent to ban oil and gas development.”
The local control issue is taking many forms elsewhere in Colorado.
Weld County hopes to relax oil and gas regulations through land use and code changes. A resolution, passed in June, designated an area of the county a “mineral resource area of state interest.” Rio Blanco wants the state to adopt separate regulations for counties atop the gas-rich Piceance Basin, according to an MOU sent to other West Slope county commissioners in June. Delta County is poised to repeal its local regulations as new ones are drafted.
Democratic lawmakers sought to set limits in Senate Bill 181 to prevent local governments from passing bans. Local regulations must be “necessary and reasonable,” the law states. Democrats added this provision to the law to stave off stronger opposition from Republicans, who, in the final weeks of the 2018 legislative session, were mounting recall efforts and effectively filibustering bills.
Representatives of the oil and gas industry see the effort to enact a ban as illegal, even under the lens of the new law.
“Banning responsible energy development in Colorado is illegal. Taking someone’s property is illegal. The courts have said so. Our elected leaders have said so,” said Dan Haley, president and CEO of COGA. He added, “It is critical that any new rules stay within the boundaries of what is both reasonable and necessary as we all work to protect the health and safety of Coloradans.”
Whether the ban is “necessary and reasonable” is something the courts may decide.
Advocates point to impacts from drilling on air quality and climate change as justification.
Oil and gas activity in Colorado accounts for about 12% of the state’s greenhouse gas emissions, according to state data. That means the industry pollutes less than people who use electricity and drive cars, boats and planes. Along the northern Front Range, from Douglas County to Weld County, cars are the top emitter of nitrogen oxides, according to a 2017 National Center for Atmospheric Research, or NCAR, study. In this same region, oil and gas is the top emitter of volatile organic compounds. Those two ingredients, VOCs and nitrogen oxides, combine with sunlight to form ground-level ozone. There is so much ozone in Colorado’s Front Range that it has failed to meet federal air quality standards for more than 15 years. The state issues health warnings, urging people with respiratory issues like asthma to avoid exercise or stay inside. The state issued one such warning Wednesday.
“We don’t look at the weather forecasts in Longmont anymore. We look at the air quality report,” said Rep. Jonathan Singer, a Democrat from Longmont, who was at the Capitol Wednesday to support the ban.
A recent study showed exposure to air pollution, including smog, can increase the rate of lung damage similar to that of smoking a pack of cigarettes per day. That study, published this week, did not include Colorado. The study looked at cities that had ozone concentrations between 15 to 25 parts per billion. The eight-hour average concentration for ozone in Denver on Wednesday was 66 parts per billion, according to the state, and was considered “moderate.”
Said Singer: “We tell our kids not to smoke. Do we have to tell them not to go outside and play? Those are the questions I have to ask.”