From the Associated Press (Dan Elliott) via the Fort Collins Coloradoan:
Colorado’s battle over who should regulate fracking — and how much — now shifts to the November election after the state Supreme Court overturned attempts by local governments to impose their own rules.
The court ruled Monday that a ban on fracking in Longmont and a five-year moratorium in Fort Collins are invalid because they conflict with state law. State officials and the industry argued the state has the primary authority to regulate energy, not local governments.
It wasn’t the end of the debate, however. Coloradans face a loud and fierce campaign over fracking this fall if activists succeed in getting any constitutional amendments on the ballot to restrict oil and gas drilling or give local governments the authority to do so.
“We’re taking them as a serious threat to responsible oil and gas development in the state of Colorado,” said Karen Crummy, a spokeswoman for an industry-backed group called Protecting Colorado’s Environment, Economy and Energy Independence.
“We consider all of these measures to be a ban on fracking,” Crummy said. “We’re going to fight.”
Backers of the proposed constitutional amendments also vow a fight, saying Monday’s ruling injects a sense of urgency into their cause.
“It can only help us because it shows that communities don’t have many rights right now when industry wants to drill,” said Tricia Olson of Yes for Health and Safety over Fracking, which hopes to get two measures on the ballot.
Fracking, or hydraulic fracturing, has long been a contentious issue in Colorado, the nation’s No. 7 energy-producing state. Fracking injects a high-pressure mix of water, sand and chemicals underground to crack open formations and make it easier to recover oil and gas.
Combined with other drilling techniques, it opened up previously inaccessible oil and gas reserves and boosted the economy, although low oil prices have led to widespread layoffs and a steep decline in drilling.
Critics worry about danger to the environment and public health from fracking spills and leaks. Others say around-the-clock noise, lights and fumes from drilling rigs make their homes unlivable as oilfields overlap with growing communities.
The industry says fracking is safe and that drilling companies take steps to minimize the disturbances.
Restrictions on fracking were proposed for Colorado’s 2014 ballot, but they were withdrawn because of fears they would lead to a huge Republican turnout and hand several close statewide races to the GOP.
Gov. John Hickenlooper promised to convene a task force to address the conflicts caused by drilling, but fracking critics were disappointed by its recommendations, and the industry said regulators went too far in implementing them.
This year, the presidential election will have a bigger impact on turnout than the fracking proposals, said Floyd Ciruli, a nonpartisan Denver pollster. But fracking could influence races in the Legislature, where Democrats have a narrow majority in the House and Republicans have a narrow edge in the Senate, he said.
“I do think that at the legislative level where relatively small shifts in turnout could be a big thing, it could be very important,” Ciruli said.
Some of the proposed constitutional amendments would clamp specific restrictions on the oil and gas industry, such as minimum distances between wells and homes. Others would grant local governments more regulatory power. Because they’re constitutional amendments, they would supersede Monday’s Supreme Court ruling.
Olson’s group and others are still gathering petitions to get their amendments on the ballot. If they succeed, they will face a well-financed campaign to defeat them.
By the end of last year, the pro-industry group, Protecting Colorado’s Environment, Economy and Energy Independence, had $746,000 on hand, according to state records.
Two groups supporting the constitutional amendments to restrict fracking reported they had less than $15,000 combined on hand this spring. Their reports covered a different period than the industry group’s.
“What we know is that industry has already been advertising nonstop,” Olson said. “What we know is they will put everything against it. But what we also know is that we have very few options left to protect Colorado’s health, safety and welfare.”
From The Durango Herald (Peter Marcus):
The issue does not directly impact La Plata County, where there is no ban or moratorium on oil and gas drilling activities. But it stands to guide future actions.
“The Supreme Court’s decision does not mean that the local control issue is going away,” said La Plata County Commissioner Gwen Lachelt, a Democrat. “Local governments need the ability to plan and ensure that oil and gas development occurs away from schools and neighborhoods.”
Some observers say the ruling reaffirmed local governments’ land-use authority, since it stated only that bans and moratoriums interfere with the state’s rule-making.
La Plata County in 1992 had a stake in determining that authority, when the Supreme Court upheld the county’s authority to regulate land-use impacts of oil and gas development.
In separate unanimous written rulings Monday, the Supreme Court declared a fracking ban in Longmont and a moratorium in Fort Collins illegal, stating that the voter-approved actions conflict with state law.
“This ruling sends a strong message that bans are not the way we do business in Colorado,” said Christi Zeller, executive director of the La Plata County Energy Council.
She underscored that La Plata and the Colorado Oil and Gas Conservation Commission have “robust” rules that have been re-written dozens of times over several decades.
“The reality is political decisions take away private property rights, they restrict and hinder business, and they disrupt the economy, here in La Plata County, and in other counties and cities in the state,” Zeller said.
Bruce Baizel, a Durango-based energy program director for Earthworks, called the Supreme Court’s ruling disappointing, but not surprising.
“It kind of pushes things back into the political realm in terms of initiatives,” Baizel said. “They (the Supreme Court) explicitly said it doesn’t matter if drilling or fracking negatively impacts residents, and the state has decided it’s not going to address that.”
Justice Richard L. Gabriel, who wrote the court’s opinion, said justices were not charged with weighing the economic advantages or health risks associated with fracking.
“This case … does not require us to weigh in on these differences of opinion, much less to try to resolve them,” Gabriel wrote.
Groups are readying ballot initiatives for November that run the gamut, including allowing local governments to ban fracking and increasing the distance of well setbacks.
“It makes absolute sense that it would strengthen those folks’ resolve to get a measure on the ballot,” Lachelt said of the ruling.
She co-chaired a task force that convened in 2014 to address the local control issue.
“I’ve expressed my disappointment that the task force didn’t adequately deal with the issues,” Lachelt said. “But just because we have a Supreme Court ruling doesn’t make this issue go away.”
Gov. John Hickenlooper, a Democrat who convened the task force as part of a compromise to avoid ballot initiatives at the time, defended the work of the panel.
“The work of the task force amplified the role of local governments in siting large oil and gas facilities and built a stronger connection between state and local regulators,” the governor said in a statement.
Attorney General Cynthia Coffman, a Republican, doubts the high court’s ruling will quell controversy.
“I fear today’s ruling will not end this divisive debate and instead some activists will continue to push anti-development initiatives undermining the state’s record of local cooperation on these policy issues,” Coffman said.
Lauren Petrie, regional director of Food and Water Watch – which helped with several initiatives across the state – said much of the opposition is just beginning.
“Today’s decision deals a devastating blow not just to Longmont residents, but to all Coloradans who have been stripped of a democratic process that should allow us the right to protect our health, safety and property from the impacts of this dangerous industrial activity.”
From the Fort Collins Coloradoan (Jacy Maramaduke):
The Colorado Supreme Court on Monday struck down Fort Collins’ five-year fracking moratorium, a long-awaited decision that could have statewide implications for the controversial oil and gas recovery method.
The court also ruled against Longmont’s voter-supported ban on hydraulic fracturing, the widespread practice of injecting a high-pressure mix of water, sand and chemicals underground to break open formations and recover oil and gas.
In its first judgment on local fracking bans and moratoriums, the court called both laws “invalid and unenforceable” because they’re preempted by state law.
Fort Collins voters supported the moratorium in 2013, and Longmont’s ban was voted into place in 2012. But the Colorado Oil and Gas Association sued both cities in separate cases and won in the lower courts, resulting in the bans being thrown out.
Both cities appealed the lower court’s decisions, and the state appeals court in August asked the Supreme Court to take the cases. The high court heard oral arguments for the cases in December.
ANALYSIS: What’s in Larimer County’s fracking fluid?
The Fort Collins and Longmont cases represent an ongoing debate in Colorado and beyond about whether the ultimate right to regulate the oil and gas industry should belong to states or municipalities. The city of Fort Collins spent about $191,000 on outside counsel defending the citizen-initiated moratorium in court. COGA spent about $1 million fighting the Fort Collins and Longmont laws, along with a fracking ban in Lafayette and moratorium in Broomfield.
There are currently no active wells or permit-pending wells in Fort Collins. One oilfield extends into the northern edge of Fort Collins, but it’s been at least three and a half years since a well was fracked there.
Fort Collins and Longmont can’t appeal the decisions to the U.S. Supreme Court because they aren’t a matter of federal law. The city of Fort Collins hasn’t yet announced its next steps, if any.
In a statement, Fort Collins city attorney Carrie Daggett said it’s “premature” to comment until the city has carefully reviewed the high court’s decision.
“These issues are complex, and we’ll thoroughly examine the decisions relative to Fort Collins and Longmont,” she said.
Citizens for a Healthy Fort Collins, which campaigned for the ballot measure that installed the moratorium, wrote in a Facebook post that the group will meet in two weeks to discuss next steps. The group had not replied to the Coloradoan’s request for more information by mid-afternoon Monday.
COGA leaders said they were pleased that the court sided with them in their view that local fracking bans and moratoriums are illegal in Colorado.
“This is not just a win for the energy industry, but for the people of Colorado who rely on affordable and dependable energy and a strong economy,” COGA President and CEO Dan Haley said in a press release. “It sends a strong message to anyone trying to drive this vital industry out of the state that those efforts will not be tolerated.”
Longmont’s City Attorney’s Office will meet in executive session with the Longmont City Council on Tuesday night to review the court ruling, according to a city press release.
Broomfield, which faced a COGA lawsuit similar to Fort Collins’ for its voter-initiated, five-year fracking moratorium, stalled the lawsuit in anticipation of the Colorado Supreme Court decision. Monday’s rulings will likely lead to the invalidation of that moratorium, along with a five-year moratorium in place in Boulder and unincorporated Boulder County.
The city of Lafayette didn’t appeal after a district court judge struck down its fracking ban in 2014.
City of Longmont
“The case did not end as the city hoped, but we respect the Supreme Court’s decision,” Longmont Mayor Dennis Coombs said in a press release. Coombs noted that Longmont’s other oil and gas regulations, including no drilling in neighborhoods, mandatory groundwater monitoring and setbacks from riparian areas remain in place.
U.S. Rep. Jared Polis, a Democrat whose district includes Fort Collins
Polis called the decision “a blow to democracy and local control” in a statement.
“Now that the law has been interpreted, it’s up to the state legislature or the people of Colorado to act to protect our neighborhoods and homes,” he said. “I look forward to continuing to help advocates in these efforts to protect our communities.”
The representative also submitted an amicus curiae brief to the court siding with Fort Collins. Through his attorney, Courtney Krause, Polis argued that Fort Collins’ moratorium was a valid land use regulation.
Colorado Rep. Mike Foote, a Democrat whose district includes Longmont
In a press release, Foote said he was disappointed about the decisions but noted that they reaffirmed local governments’ land use authority.
“Cities and counties may need to modify their approach somewhat,” Foote said, “but it’s clear that the Court has reaffirmed that local governments do have a seat at the table when it comes to oil and gas development.”
“And “in cases where local control isn’t recognized, we as legislators have the ability to step in,” he added.
Colorado Attorney General Cynthia Coffman
In a press release, Coffman said that local fracking bans “undermine the interests of the state as a whole.” But despite the court decisions, the fight might not be over yet, she said.
“Sadly, I fear today’s ruling will not end this divisive debate and instead some activists will continue to push anti-development initiatives undermining the state’s record of local cooperation on these policy issues,” she said.
Boulder County Board of Commissioners, which passed a moratorium on fracking in unincorporated areas of the county until July 2018
The high court decisions are specific to the communities named in the lawsuits, an unidentified board representative wrote in a press release, so the impact of the decisions on Boulder County will need further analysis.
“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 release said.
In a press release, Conservation Colorado executive director Pete Maysmith called the decisions “disappointing” and said that local governments should be able to call a timeout on drilling while they examine its impacts.
“These decisions … 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,” he said in the release. “In order to combat this hammer, local governments must be empowered with better tools to protect their citizens from heavy industrial drilling.”
Colorado Petroleum Council
The Colorado Petroleum Council welcomed the decisions for upholding the state’s primacy in overseeing oil and natural gas permitting and curtailing “arbitrary bans” on fracking that could cost local jobs, deprive state and local governments of tax revenue and limit access to energy resources, according to a CPC press release.
“Today’s decision protects private property rights, which are a main driver for the energy renaissance in this country,” executive director Tracee Bentley said in the release. “The U.S. was counted out as an oil and natural gas superpower, but with states like Colorado leading the way, the U.S. defied the odds to become the world’s largest producer of natural gas and a world leader in crude production.”
Advancing Colorado, a political advocacy group that supports fracking and the production of coal and natural gas, among other things
“Today’s ruling protects Colorado’s robust energy portfolio and energy independence, and sends a strong message to the deceptive anti-energy extremists,” executive director Jonathan Lockwood said in a statement. “The Colorado Supreme Court is protecting our democratic process and their ruling will help protect our health, safety and property from the attacks of dangerous special interest groups.”