Colorado Supreme Court strikes down Longmont, Fort Collins fracking bans

The Colorado Supreme Court on Monday unanimously struck down voter-approved fracking bans in Longmont and Fort Collins, calling them “invalid and unenforceable,” affirming lower courts’ past rulings that the bans were preempted by state law.

The ruling by the state’s high court is a major victory for Colorado’s oil and gas industry, which had argued that state oversight related to drilling should reign and that opening the door to such local bans could cripple the industry by creating a patchwork of local regulations inconsistent with state rules.

Longmont voters in 2012 had approved a permanent ban on fracking, and Fort Collins voters followed suit in 2013 with a five-year moratorium to give city officials time to assess what impacts the controversial practice of extracting oil and gas might have for the city. The Colorado Oil and Gas Conservation Commission subsequently sued Longmont and Fort Collins over their bans and won in Boulder County and Larimer County district courts, respectively. Both cities appealed, with the Colorado Court of Appeals referring the case to the Supreme Court last year because of the potential for more such cases around the state.

Monday’s rulings came four and a half months after the Supreme Court heard oral arguments in the appeals in December. The complete Fort Collins ruling can be read here. The Longmont ruling can be read here.

“COGA has always maintained that these bans on responsible oil and gas development are illegal, and we’re pleased that today the Colorado Supreme Court has agreed with us,” COGA president and CEO Dan Haley said in a prepared statement. “It sends a strong message to anyone trying to drive this vital industry out of the state that those efforts will not be tolerated at any level.”

Fracking, formally known as hydraulic fracturing, involves pumping water mixed with sand and chemicals into a drilled hole to retrieve oil and natural gas from shale deep underground. The practice is one that has caused plenty of debate, as urban sprawl on Colorado’s Front Range and drilling facilities collide. Detractors of the practice worry that fracking could cause environmental and health impacts, while the industry has contended that the practice is safe and vital to extracting oil and gas affordably.

In a conference call with media Monday, Haley said COGA has spent about $1 million in recent years fighting bans and moratoria in Longmont, Fort Collins, Lafayette and Broomfield. COGA won a similar challenge at the district court level against Lafayette. And the case of a five-year moratorium in Broomfield has been held in abeyance since June, pending the outcome of the Fort Collins and Longmont cases.

The city of Boulder and Boulder County also have fracking moratoria in place, though those would appear to be unenforceable now as well. Both Haley and Mark Mathews, the outside legal counsel for COGA who argued the case before the Supreme Court, said they believed all bans and moratoria currently in place in the state should be voluntarily withdrawn or that municipalities should at least issue statements saying that they won’t be enforced. Mathews called Boulder County’s moratorium, in place since 2012, “plainly illegal.” Boulder has a similar moratorium that was passed by city council in 2013 and extended to five years by voters.

City of Boulder spokeswoman Sarah Huntley said the city attorney’s office is reviewing the ruling and would be advising city council on possible next steps. Bill Tuthill, city and county attorney for Broomfield, said Broomfield can’t simply withdraw its moratorium because it was passed by voters and is part of the city’s charter. But he conceded that the moratorium, almost identical to Fort Collins’, is now unenforceable, and said he fully expects the district court to invalidate it.

“The practical effect of this is that our existing five-year moratorium is going to be overturned,” Tuthill said.

Boulder County officials took a bit more defiant stance. In a statement, the Boulder County Board of Commissioners commended Longmont and Fort Collins “for their heroic efforts to protect residents from the environmental and safety risks posed by fracking as well as its nuisance impacts.”

“Like all other Colorado communities that regulate oil and gas development, we need to take a close look at our existing regulations before we take any action to change our stance on fracking in unincorporated Boulder County,” the commissioners wrote. “Knowing that this issue remains of great concern to our residents, we pledge to continue to do everything we can to protect the interests of our community members within the bounds of this new law.”

In the Supreme Court’s opinions on Longmont’s ban and Fort Collins’ moratorium, Justice Richard Gabriel wrote that both “operationally conflict” with state law. The court’s decisions remand the cases back to the district courts “for further proceedings,” though that is expected to be procedural so that the district courts can issue orders in accordance with the Supreme Court’s decisions and possibly award payment of attorneys’ fees to COGA.

Officials for neither Longmont nor Fort Collins granted interview requests Monday, though both issued statements acknowledging defeat. Longmont attorneys are expected to meet in executive session with city council members on Tuesday to review the ruling.

“The case did not end as the city hoped, but we respect the Supreme Court’s decision,” Longmont mayor Dennis Coombs said in a release from the city.

Fort Collins city attorney Carrie Daggett, in her own statement, said, “It is premature to comment until we have had a chance to review the Supreme Court’s decision carefully and fully evaluate how it affects the city. These issues are complex, and we’ll thoroughly examine the decisions relative to Fort Collins and Longmont. However, it is clear that the Supreme Court has found that the Fort Collins moratorium on hydraulic fracturing is in operational conflict with Colorado law and is therefore preempted.”

Haley said Monday that he doesn’t foresee any applications to frack in Longmont or Fort Collins in the near future simply because operators have realized that it was futile to file any applications while the bans were in place. But he said the rulings open the door for operators to now re-examine their business plans in those two areas.

One issue that could more quickly come to the forefront is that of Longmont’s oil and gas regulations passed in 2012 separately from the fracking ban. Those rules include restricting new oil and gas surface operations in residentially zoned areas, set groundwater monitoring rules, limit noise disturbances and require disclosures of fracking chemicals used to the city’s first responders. COGA had sued the city over those rules but agreed to dismiss that lawsuit in late 2014 as part of a broader deal with state officials seeking to find some balance between local and state interests on fracking regulations.

Haley said it’s yet to be determined how COGA officials will approach regulations such as Longmont’s in light of the Supreme Court’s clear statement on how it views local rules that conflict with the state’s.

“I think it’s hard to answer that right now until we’re able to re-engage (with Longmont officials),” Haley said.

One thing Monday’s rulings could also do is increase the likelihood that the oil and gas industry will face statewide ballot initiatives related to fracking and local control. While the new rulings clearly prohibit municipalities from going it alone on fracking bans, they don’t necessarily rule out rule changes at the state level.

Haley said that if fracking activists want to continue to go down what he called a “losing path” and “shred” the rights of private mineral owners, “then that is up to them.”

Environmental advocates appear poised to keep the issue alive.

“The Colorado Supreme Court has now ruled that corporate polluters’ profits outweigh the will of Coloradans who have said ‘no’ to fracking and ‘yes’ to a safe environment for their communities,” said Michael Brune, executive director of the Sierra Club, which had joined Longmont in its appeal. “However, today’s decision is not the end. Coloradans can and will fight these dangerous wells permit-by-permit.”

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