State law preempts a ban on hydraulic fracturing and the storage and disposal of hydraulic fracturing waste in the city of Longmont, Colo., a district court ruled July 24 (Colo. Oil and Gas Ass'n v. Longmont, 20th Jud. Dist., 2013-cv-63,order 7/24/14).
Judge D.D. Mallard, district court judge in Boulder County, ruled the voter-approved fracking ban in Longmont is invalid as preempted by the Colorado Oil and Gas Conservation Act.
“Longmont's ban on hydraulic fracturing creates a patchwork of oil and gas extraction methods that inhibits what the General Assembly has recognized as a necessary activity in the Oil and Gas Conservation Act and it impedes the orderly development of Colorado's mineral resources,” Mallard said.
The court got it right, Colorado Attorney General John Suthers (R) said in a statement.
“The law regarding preemption of local oil and gas regulation by the Colorado Oil and Gas Conservation Act is clear,” he said. “Under the current law, local governments can't ban fracking.”
Rigo Leal, spokesman for Longmont, told Bloomberg BNA the city is reviewing the decision and would provide comment after doing so.
Kevin Lynch, defense attorney in the case and an assistant professor with the Environmental Law Clinic at the University of Denver Sturm College of Law, issued a statement saying the defendants were disappointed by the ruling.
“We always knew this case would ultimately have to be decided by the appellate courts in Colorado,” Lynch said. “We disagree with Judge Mallard's ruling that her hands were tied by decades-old precedent, and her failure to acknowledge the changes to state policy evidenced by amendments to the Oil and Gas Conservation Act.”
Local Impact of Fracking Called 'Relevant.'
Lynch said the negative “local impacts of fracking are relevant to the preemption issue and must be considered by the courts, rather than dismissed as irrelevant as was done in this decision.”
He said he was confident the courts will ultimately rule fracking “should not be pursued everywhere, anywhere, regardless of the impacts.”
Mallard cited a 1992 ruling by the Colorado Supreme Court restricting the authority of local governments to regulate the industry (Voss v. Lundvall Bros.,Colo. Sup. Ct., No. 91SC169, 6/8/92).
In that decision, the court struck down a drilling ban in Greeley, Colo., saying the Oil and Gas Conservation Act prevented a home-rule city from passing land-use ordinances that ban oil and gas drilling within its boundaries.
However, the court ruled, state law “does not totally preempt a home-rule city's exercise of land-use authority over oil and gas development and operations” within the city limits.
In the case of the Longmont ban, Mallard said, state preemption can arise “by reason of operational conflict” where the “effectuation of a local interest would materially impede or destroy the state interest.”
Longmont 'Destroyed' State Interest.
Longmont's ban, amended into the city charter by voters in November 2102, has “virtually destroyed the state interest in production,” she said.
TOP Operating Co., an oil and gas producer that intervened with the plaintiffs in the case, the Colorado Oil and Gas Conservation Commission and the Colorado Oil and Gas Association, “will not and cannot economically drill and complete [its] wells without the ability to conduct hydraulic fracturing operations,” she said.
Mallard also said that in her opinion there is “no way” to harmonize Longmont's fracking ban with the state goals of the Oil and Gas Conservation Act.
“The state interest in production, prevention of waste and protection of correlative rights, on the one hand, and Longmont's interest in banning hydraulic fracturing on the other, present mutually exclusive positions,” she said.
However, she said, the Longmont ban “excludes and prohibits what the General Assembly has authorized through the Colorado Oil and Gas Conservation Commission.”
Court Stays Decision.
Mallard enjoined the Longmont ban but stayed her decision to allow the city to file notice of appeal.
“In other words, there shall be no hydraulic fracturing activity in the City of Longmont until further order of Court, either from this Court or a higher court,” she said.
Intervening as defendants in the case alongside Longmont were the Sierra Club; Earthworks; Our Health, Our Future, Our Longmont; and Food & Water Watch.