Editors note: This story was originally published on Dec. 23, 2019. On Tuesday, at 11 a.m., environmental advocates are planning a news conference at the Boulder County Courthouse in downtown Boulder before delivering a petition to county commissioners with signatures from residents calling for a fracking ban.
Micah Parkin, executive director of 350 Colorado, an environmental advocacy group, recently stood before about a hundred people packed inside the Unity of Boulder Church for an event on how Boulder County can regulate oil and gas drilling. After a somewhat technical presentation on the county’s land-use policy, she asked for a show of hands.
“Would you prefer to see [drilling] banned in Boulder County?” Parkin asked. Nearly all hands went up. “In the state,” one man called from the back of the room.
In April, Gov. Jared Polis signed into law Senate Bill 181, which gives local governments authority to write oil and gas regulations that are “more protective or stricter than state requirements,” so long as the regulations are “reasonable” and “necessary” to protect public health, safety, welfare, the environment and wildlife resources.
Senate Bill 181 does not state whether an outright ban is legal — the law doesn’t even mention the word “ban.” The question of whether the law allows for it will almost certainly have to be decided by the courts.
If any county were to try banning fracking under the new law, it would be Boulder. The county passed its first drilling moratorium in 2012 followed by five years of extensions — even after a Colorado Supreme Court ruling in 2016 effectively struck down local bans. The county commissioners have called on state regulators to protect public health and safety, backed a ballot measure to increase setbacks and joined several lawsuits against the industry.
Advocates at the Unity of Boulder Church were circulating petitions calling on the commission to ban drilling. So far, the three commissioners have been mostly mum on whether they support the idea. The Colorado Independent emailed the three and received a response from a county spokesperson who said, “we cannot comment on this question because it involves areas where the County Attorney will be providing privileged legal advice to the Board of County Commissioners. In order for the board to keep open any legal option for addressing oil and gas drilling, they need to make certain they do not prejudice future decisions by speaking publicly on any matters that may be challenged legally.”
In addition to Boulder County, Berthoud, Broomfield, Erie, Lafayette, Longmont, Superior and Timnath have moratoria on the books while they write new regulations, with most of those timeouts set to expire early next year. In September, Adams County was the first to pass new regulations, creating more stringent permit applications for drilling within 1,000 feet of a home or school. (State law requires a special permission to drill within 500 feet of a home and 1,000 feet of a school.)
Boulder County has been fighting Crestone Peak Resources, which is owned by the Canadian Pension Plan Investment Board, over plans to drill 140 wells on open space in unincorporated Boulder County. The permit application is on hold because the county lodged a lawsuit, claiming the company can’t tap oil on protected open space. In a separate permit application, Extraction Oil & Gas, operating as 8 North, is seeking permission to drill for oil within a conservation easement the county purchased just across the county line. This permit, too, is tied up in court.
The debate before the passage of Senate Bill 181 was impassioned, with hundreds of oil and gas workers in uniform being bused to the Capitol to lobby lawmakers and rally outside. The industry saw the bill as cracking the door open to regulate it out of businesses, calling the bill a de facto ban. State officials disputed those claims. Lawmakers dubbed them misinformation.
“This is not a ban,” House Speaker KC Becker, a Democrat from Boulder who helped pass the bill, told her colleagues in March during a late-night committee hearing on the bill.
“It’s not my belief that local governments have the ability to institute a blanket ban,” Jeff Robbins, the director of the Colorado Oil and Gas Conservation Commission who used to work as an attorney for local governments seeking to regulate the industry, said at the same hearing.
The 2016 Colorado Supreme Court decision that essentially outlawed local bans said the state had an overriding interest in oil and gas development. While the enactment of Senate Bill 181 means the state is no longer prioritizing oil and gas development over public health concerns, thorny legal issues remain.
“I think what jeopardizes [local governments’] legal defense in enacting a ban is the fact that there are property rights at issue. To say they can’t be developed at all would be a problem,” Becker said.
Another potential legal roadblock is that lawmakers have repeatedly and publicly stated it’s not their intent to ban drilling and those public declarations “would be part of the evidence,” said Shaun Sullivan, the city and county attorney for Broomfield.
Sullivan said he’s not recommending the city of Broomfield, which has adopted several moratoria in recent years, enact a ban. Instead of a ban, he said, the county is considering a number of oil and gas regulations, including a 2,000 foot setback from drilling rigs and occupied buildings such as homes and schools, which a state health study shows could be exposed to harmful emissions, and zoning requirements that prohibit drilling in residential areas.
“The idea (of Senate Bill 181) is that we are supposed to use our land-use power to regulate oil and gas,” he said. “We are going to use them to the maximum extent we can.”
That strategy, too, is a risk, Sullivan said, because the industry could challenge the county in court. And the stakes, financial and otherwise, are high.
Longmont spent nearly $200,000 on litigation expenses related to the city’s fracking ban, according to the city attorney’s office. That came on top of paying $3 million to pay drillers to stay out of city limits.
Advocates believe the industry’s legal war chest is stocked. Protect Colorado, an industry-backed political expenditure committee, which is set up to buy political advertisements and influence voters, spent about $40 million to help defeat a ballot measure in 2018 that would have increased setbacks between buildings and drilling rigs from the baseline 500 feet to 2,500 feet. Dan Haley, president of the Colorado Oil and Gas Association, said in a recent statement that the Longmont fracking ban is still illegal under the new law and such efforts to enact bans amount to “litigation stunts.”
Another concern among county attorneys and others is that if the courts rule against a drilling ban, it could set a precedent that limits other regulations by narrowing the scope of the law. This could also stifle otherwise emboldened local governments from passing more stringent regulations.
“It’s possible that a local government could feel chilled by a court decision,” said Wyatt Sassman, an assistant professor at Denver Law who works with the school’s environmental law clinic. “But they shouldn’t. Because there are other options. And because the clear spirit of 181 was to provide more tools” to regulate the industry. Among those other options: setbacks and zoning restrictions.
With drilling moratoria set to expire in early next year, counties, cities and advocates are watching what happens in Longmont, where Colorado Rising, an environmental advocacy group, is asking the Boulder County District Court to reinstate a 2012 fracking ban in Longmont’s city charter that was suspended following the 2016 Colorado Supreme Court ruling.
This month, a judge reversed an earlier decision to reopen the 2016 case. The ruling was based mostly on the process and not on the merits of the case. Advocates say they plan to file a new case in the coming weeks.
Colorado Rising is arguing drilling and the pollution it creates is causing a number of health risks, air quality woes and climate change. Banning drilling, they say, is therefore justified to protect public health, safety and the environment under the new law, among other legal arguments. While the Boulder County District Court judge’s decision was a setback, supporters of the ban say they are still optimistic they can win when they get their day in court.
At the Unity Church in Boulder, Tricia Olson, president of Colorado Rising, gave a presentation on changes she would like to see to Boulder County’s land-use laws to all but outlaw drilling in the county. She said the county should require offsets for emissions, prohibitions on drilling in flood plains and curtailments during wildlife breeding seasons. She also mentioned more subtle changes that would have an outsized impact on the county’s ability to regulate the industry.
Subtle changes are not what Boulder County resident Donna Rhodes is looking for. After the event, she said she prefers an outright ban because it leaves no wiggle room for the industry. “They can always get around things,” she said.