Johnathan Walker:Colorado Court Strikes Down Local Fracking Restrictions

The Johnathan WalkerColorado Supreme Court struck down local fracking restrictions in two cities—Longmont, which had passed a ban, and Fort Collins, which had issued a five-year moratorium—issuing a one-two punch to the state’s anti-fracking movement.

Regulators at the Colorado Oil and Gas Conservation Commission, not local communities, have the exclusive authority to regulate oil and gas activity in Colorado, the Supreme Court judges ruled Monday.

The Colorado decision echoes a similar ruling from the Ohio Supreme Court last year, which overturned a fracking ban in the town of Munroe Falls.

“This decision fits with the trend across most states, which is for state governments to preempt local control,” said Hannah Wiseman, an environmental law professor at Florida State University. “The exceptions have been New York and Pennsylvania, but most other states in which this issue has arisen have preempted local government, either through legislation or through courts interpreting existing legislation.”

The Colorado Oil and Gas Association (COGA), the state industry trade group that sued both cities, celebrated the news. “This decision sends a strong message to anyone trying to drive this vital industry out of the state that those efforts will not be tolerated,” COGA president Dan Haley said in a statement. “Bans and moratoriums on oil and gas are not a reasonable or responsible way to address local concerns.”

Environmentalists decried the decision and vowed to keep fighting for local control.

“The Colorado Supreme Court’s decision has not only tarnished the scales of justice, it places the citizens of communities at risk from a largely unregulated system of harmful pollution,” Shane Davis, a leading activist in the state, told InsideClimate News in an email.

“It’s beyond comprehension and it’s unconscionable,” Kaye Fissinger, a Longmont resident and activist, told InsideClimate News. “If anyone thinks we are going to lie down and play dead because of this ruling, they’ve got another thing coming.”

Colorado ranks sixth in the nation for natural gas production and seventh in crude oil, according to the U.S. Energy Information Administration. The state’s energy boom is largely due to the combination of fracking and horizontal drilling to extract previously hard-to-access fossil fuel resources.

With that boom, however, came concerns about how the expansion of oil and gas development would impact public health, the environment, noise pollution, road quality and property values. Longmont, about 15 miles northeast of Boulder, took the bold step of banning hydraulic fracturing and the storage and disposal of fracking-linked waste within its boundaries in 2012. It  was quickly sued by the oil and gas industry. In 2013, Fort Collins passed a five-year fracking moratorium and was also served with a lawsuit by the industry.

A Colorado district judge ruled against both communities in 2014. After Longmont and Fort Collins appealed their previous decisions, the state appeals court successfully petitioned the high court to take on the controversial cases.

Fissinger and other activists are now looking to push for local control in a different way: the November ballot. A green group called Coloradans Resisting Extreme Energy Development has proposed two ballot initiatives on fracking. Their first proposal is to amend the state’s constitution to give local communities authority over fossil fuel activities, including the power “to prohibit, limit, or impose moratoriums on oil and gas development.”

Their second proposal seeks to expand the state’s setback rule. Currently, oil and gas operations in the state must be 500 feet away from homes and 1,000 feet away from any hospitals and schools. Activists propose a 2,500-foot separation from those buildings, as well as from bodies of water.

Similar ballot initiative efforts were blocked by a last-minute political deal struck between Democratic Gov. John Hickenlooper and key donors of those campaigns in 2014. Environmentalists are hoping to avoid a repeat.

“If the system won’t protect us and the environment,” Davis said. “We will change the system.”

Correction: An earlier version of this story misidentified Colorado Gov. John Hickenlooper as a Republican. He is a Democrat.