Colorado’s Supreme Court ruled against Front Range cities’ push to limit oil and gas development near people Monday, saying state power to regulate the industry trumps local measures, which the court deemed “invalid and unenforceable.”
The court overturned Fort Collins’ five-year moratorium on fracking within the city limits. Justices concluded it “operationally conflicts” with state law and therefore, under well-established principles, must be pre-empted by the state. It also rejected Longmont’s 2012 ban on fracking because it “materially impedes” use of state power.
Court officials unveiled the rulings 144 days after justices heard arguments — at a time of intensifying political controversy. Colorado has emerged as a leading oil and gas producer with more than 50,000 active oil and gas wells and more than 45,000 inactive wells where land must now be restored. And Colorado residents again are pushing ballot initiatives to establish stronger limits on hydraulic fracturing, or fracking, the industry’s current technique of injecting sand, millions of gallons of water and chemicals deep underground to accelerate extraction of oil and gas.
Industry groups advocate increased production.
“The oil and gas industry is thrilled,” Colorado Petroleum Council director Tracee Bentley said.
“We feel as if the Colorado justices really understand this issue,” Bentley said. “This very well could mean that anti-oil and gas forces bring forth ballot initiatives. Oil and gas is ready to stand up for Colorado consumers and for Colorado’s place in the American energy renaissance.”
Conservation Colorado director Pete Maysmith called the rulings disappointing.
“We believe that good policy-making happens from the ground up and that local communities are best-suited to make decisions about what happens with oil and gas drilling within their borders. Local governments should have the ability to call a timeout on drilling in order to better understand its impacts and ensure safety and public health, just as they are allowed to do with other industries,” Maysmith said.
“We will continue to stand with the communities that are being dramatically impacted by oil and gas drilling. Their concerns have not gone away with today’s rulings,” he said.
“These decisions also show that the oil and gas industry’s threats of litigation are a hammer that the industry has no qualms about wielding against local governments if they decide to engage in land use planning. In order to combat this hammer, local governments must be empowered with better tools to protect their citizens from heavy industrial drilling.”
The rulings build on Colorado law that has given state authorities an overriding interest in orderly production of oil and gas. Under Colorado’s split estate legal system, ownership of underground minerals confers property rights.
State lawmakers created the Colorado Oil and Gas Conservation Commission to oversee industry operations.
The legal battles over state versus local power arose after Longmont leaders in 2012 imposed rules for oil and gas activity. Colorado’s attorney general at the time, John Suthers, sued the city. And Longmont voters responded by banning fracking.
In 2013, Fort Collins voters passed a five-year moratorium on fracking inside city boundaries.
State attorneys, joining the oil and gas industry, argued that state regulators should have the final say in conflicts over drilling and that the local measures negate this state power. Gov. John Hickenlooper and state officials contend county, city and town authorities, while they do have some power to guide land use, lack the power to regulate oil and gas.
On the other side, attorneys representing Fort Collins and Longmont argued that local measures enacted to shield residents did not prevent companies from producing.
Lower courts in Boulder and Larimer counties overturned the ban and moratorium. Longmont and Fort Collins pushed their cases to the Colorado Court of Appeals, asking it to restore the ban and moratorium. Last August, the appeals court asked the Colorado Supreme Court to rule.
The rulings Monday build on the 1992 Voss case where the court determined Colorado’s interest in oil and gas development was strong enough to override a municipal ban in Greeley. The Voss ruling did not totally pre-empt what local government can do without impeding state interests.
Supreme Court justices who heard arguments from Longmont and Fort Collins noted that law and industry technology have changed since 1992. The justices said they’d explore whether Colorado’s interest is “sufficiently dominating” and what test courts should use to decide.
Industry opponents said the high court rulings will bolster their ballot initiative campaigns.
“People are saying enough is enough and they don’t want fracking in their backyards,” Rocky Mountain Food and Water Watch director Lauren Petrie said.
“This is going to give everybody more reason to go out and get these initiatives passed — so that we can restore our right to protect our air, land and water, our families and our health, from industrial activity.”
Bruce Finley: 303-954-1700, bfinley@denverpost.com or @finleybruce
