Colorado Supreme Court weighs legality of city fracking bans

Anti-fracking activists gathered outside the judicial center to demand that the court allow cities to pass fracking bans and moratoriums without state interference — local laws the Colorado Oil and Gas Association wants to undermine.  Photo credit: Marianne Goodland

The oil and gas industry and environmentalists showed up in court Wednesday for opening arguments in two cases that will decide if Colorado cities can ban fracking or if the state can override municipal decisions because it regulates energy.

The cases stem from a 2012 voter-approved ban on fracking in Longmont, and a five-year moratorium in Fort Collins, also okayed by voters, in 2013. Both are home rule cities where citizens have the right to change the municipal constitution. Under state law, home rule cities have much more latitude in their governance.

In both cases, the Colorado Oil and Gas Association sued to overturn those citizen decisions.

Lower courts in Boulder and Larimer County struck down both measures. The Colorado Court of Appeals chose not to make a decision on either case, and sent both lawsuits to the state Supreme Court.

The Colorado Oil and Gas Association has argued that the state expressly authorizes fracking through rules issued by the Colorado Oil and Gas Conservation Commission. The commission rules don’t state plainly that fracking is allowed, but fracking is mentioned 41 times in commission regulations, the attorneys said, and that makes fracking a state interest that trumps local authority.

Regulations issued by the commission should be applied uniformly statewide, they argued.

That’s countered by attorneys for Longmont and Fort Collins, who argued that home rule cities should have the right to make their own policies. They also pointed out that state law gives those cities the right to make land use decisions, which should leave the local fracking laws in place.

In the case of the Fort Collins moratorium, attorney Barbara Green pointed out that not one company has so far applied for a fracking permit since the moratorium went into effect. Green also said that the city’s moratorium is not a ban, since it has a finite time limit and that it was put into place while the city examined the effects of fracking on residents’ health and safety. That’s a state interest, too, Green said.

Attorney Mark Mathews, who represented the Colorado Oil and Gas Association, explained that there have been no applications because oil and gas companies recognized the moratorium for what it really is: a ban on fracking, albeit a time-limited one.

Justices, including the court’s newest member, Richard Gabriel, questioned the attorneys on the time-limited moratorium, and whether fracking is really authorized under state law.

Outside the state Judicial Center, where Wednesday’s hearing took place, a half-dozen environmental groups and about 30 of their members stood in support of the two city measures. Kaye Fissinger of Our Health, Our Future, Our Longmont, which initiated the Longmont ballot measure, said the problems surfaced in 2011 when citizens found out that fracking wells were going to be developed close to Union Reservoir, a city water supply. They decided to go to the ballot instead of City Council, believing the Council was hostile to their interests, she said. Voters approved the charter amendment by a 60 to 40 percent margin.

Fissinger, a lung cancer survivor, said the chemicals used in fracking, including benzene, a known carcinogen, affect the health of children, the elderly and those with medical issues such as hers.

Will Walters of the Rocky Mountain Sierra Club said 402 of its members live in Longmont and 846 live in Fort Collins.

“We the people have the right to defend ourselves, and by democratic vote enacted a common-sense law to do that. The oil companies are free to exercise their economic rights,” Walters said, but not when they use “dirty and dangerous” technology that harms citizens’ health and well-being.

“We have no say when [fracking] comes into our homes,” said Sam Schabacker of Food and Water Watch. He criticized Gov. John Hickenlooper for siding with the oil and gas industry, pointing out that Hickenlooper received more than $100,000 in campaign donations from the industry for his 2014 reelection bid “and is happy to do their bidding.”

According to followthemoney.org, Hickenlooper took in about $216,000 in campaign contributions from the oil and gas industry.

The oil and gas conservation commission, which was one of the plaintiffs in the Longmont suit, “rubber-stamps thousands of permits every year,” Schabacker added. The “oil and gas industry bullies us” and “intimidates our elected officials. “

Those who oppose the measures say the bans not only interfere with state interests but can cause economic harm as well.

Rich Coolidge of Vital for Colorado said that bans and moratoriums on fracking have economic consequences. The oil and gas industry supports many businesses, Coolidge told The Colorado Independent prior to Wednesday’s hearing.

There are stakeholders other than the energy operators who rely on oil and gas for economic support, he said. Mineral rights owners receive royalty payments. Those who own the land where the drilling takes place have property rights, he pointed out. For example, farmers may rely on income from letting oil and gas companies drill their land — income that supports the farm outside of the crop season.

“Colorado is leading the way in responsible energy development,” Coolidge said, including in bringing in new technologies and in the safety measures regulated by the commission. “Operators in Colorado live here and care about the environment,” he added.

“We are confident that the Supreme Court will provide further clarity regarding the primacy of the state in oil and gas regulation,” said Dan Haley, president of COGA, prior to Wednesday’s hearing.

The Supreme Court is not expected to rule on the cases until after the first of the year.

The days of the oil and gas industry making all the decisions are over, according to the environmentalists at the hearing.

“We aren’t going to take this anymore,” Schabacker said. “We know we can win.”