High court strikes down Fort Collins' halt to fracking

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.

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.

What's next?

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.

Mixed reactions

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.

Conservation Colorado

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."

Reporter Jacy Marmaduke covers environment and breaking news for the Coloradoan. Follow her on Twitter at @jacymarmaduke and Facebook at facebook.com/jacymarmaduke1.