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CO Fracking Ban Case Is Asked To Be Reopened

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A Motion to Reopen a case filed by Colorado Rising for Communities and Our Health, Our Future, Our Longmont was granted in August 2019 by the Boulder District Court. The Motion to Reopen the case was to reinstate Longmont’s fracking ban. The original dispute was between the City of Longmont, Colorado and Our Health, Our Future, Our Longmont; Food & Water Watch; the Sierra Club; and Earthworks.

 

On July 24, 2014, the Court granted a Motion for Summary Judgment on behalf of the Colorado Oil and Gas Association (COGA), Top Operating Company (Top Operating), and the Colorado Oil and Gas Conservation Commission (GOGCC). It found that the City of Longmont’s Article XVI of its municipal charter which banned hydraulic fracturing within city limits was in operational conflict with the Colorado Oil and Gas Conservation Act (COGCA)

Fracking Ban

Article XVI amending Longmont's City Charter was passed by voters in 2012. The amendment banned fracking and the storage and disposal of fracking waste in the city. The COGCC sought a permanent injunction to prevent the City of Longmont from enforcing Article XVI. The Colorado Oil and Gas Association (COGA) intervened and joined as Plaintiff. The ban was ultimately overturned in 2014 and 2016 by state court decisions. It held that there was a need for statewide uniformity to  encourage the “state’s interest in the efficient and fair development of oil and natural gas resources.” It stated that the fracking ban would cause “serious consequences” for people living outside the City of Longmont by increasing the cost of fracking outside the city limits of Longmont. The Court determined the impact of Article XVI was of both statewide and local concern. The 2016 decision held that the fracking ban was in operational conflict with the COCGA and determined it was both invalid and unenforceable.

Colorado Law and Policy Changes

Colorado Rising for Communities’ Motion to Reopen argued that changes in law and public policy necessitated the case being reopened to allow the reinstatement of Longmont's fracking ban. The motion stated SB 181 changed public policy by favoring protection of public health, safety, welfare, environmentand wildlife resources over oil and gas development. Senate Bill 181 was signed into law by Governor Polis on April 16, 2019 expanding the discretion of the COGCC Director, as well increasing the authority of local government to regulate the industry and reprioritize the mission of the COGCC. SB 181 gives power to local governments to regulate oil and gas operations, land use authority, and the siting of oil and gas facilities. It gives local governments the ability to adopt stricter regulations than what is required by the state.

The Motion to Reopen stated that SB 18-181 placed no limitation on local governments on banning oil and gas operations in their jurisdictions. It stated there is no language in the bill that prohibits “local governments from implementing moratoria or bans against fracking within their jurisdictions, particularly where the local government aims to protect and minimize adverse impacts to public health, safety, and welfare and the environment.” The motion expressly states that if the legislature would have intended to prohibit local governments from banning oil and gas operations “it would have clearly said so.” The motion makes the argument the passing of SB 181 Article XVI of the Longmont Municipal Charter is no longer in conflict with the Act.

The fracking industry in Colorado will seriously be impacted if Colorado Rising for Communities’ wins their case. The Court has stated the fracking ban would impact the cost of fracking in Colorado, but this is the first domino that would fall in the industry. Longmont’s success in banning fracking might lead to many other cities in Colorado doing the same. This is highly likely considering one of Governor Polis’ campaign promises was to give local governments more say in oil and gas drilling decisions as well as reduce methane emissions. It should also be noted that Longmont has seen elevated levels of oil and gas-related pollution, and the Environmental Protection Agency recently announced it was considering reclassifying Denver and the Front Range as a “serious violator” of federal health standards due to elevated ozone levels.

It has been only a few short months since Senate Bill 181 was signed into law and there is a great deal to be learned of how this will impact Colorado and its oil and gas industry in the future. For more information on the status of this case and how it may affect you, please contact Whitcomb Selinsky PC at (866) 476-4558 or complete an online contact form.

About the AuthorRaymundo Ribota

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