Supreme Court of Colorado Confirms that Local Governments Cannot Ban Hydraulic Fracturing

From May to August, I was preoccupied with bar examination (Pennsylvania) and wedding preparation. That’s no excuse, however, not to mention two of this year’s most important shale law decisions. In the twin decisions in City of Longmont v. Colorado Oil and Gas Assoc. and City of Fort Collins v. Colorado Oil and Gas Assoc., the Supreme Court of Colorado held that Colorado state law preempts local government regulation of hydraulic fracturing. In doing so, the Supreme Court of Colorado effectively confirmed what it had held 24 years earlier in the context of the City of Greeley’s city-limits drilling ban. See Voss v. Lundvall Bros., 830 P.2d 1061 (Colo. 1992). The City of Fort Collins had adopted a five-year moratorium on hydraulic fracturing and amended its municipal code accordingly; the City of Longmont had amended its charter to ban hydraulic fracturing entirely. The Colorado Oil and Gas Association then filed suit against both municipalities seeking to invalidate the local regulations.

At issue in both cases was whether hydraulic fracturing is a matter of purely local concern or of statewide (or mixed) concern. Under Colorado law, home rule municipalities like Longmont and Fort Collins can only displace state law on matters of purely local concern; on matters of statewide or mixed concern, state law will preempt conflicting municipal ordinances.

The Supreme Court of Colorado unsurprisingly held that “a home-rule city’s ordinance seeking to regulate fracking involves a matter of mixed state and local concern because it implicates the need for uniform statewide regulation and the extraterritorial impact of a fracking ban, on the one hand, and the local government’s traditional authority to excercise its zoning authority over land where oil and gas development occurs, on the other.” City of Fort Collins, No. 2016 CO 28, at *9 (May 2, 2016). Just as unsurprinsgly, the Supreme Court of Colorado held that fracking bans and moratoriums “render[] the state’s statutory and regulatory scheme superfluous” and thereby constitute an unlawful conflict with state law. Id. at *14. Finally, in Longmont, the Supreme Court of Colorado addressed the argument that “the inalienable rights granted to citizens by [] the Colorado Constitution ‘reign supreme over any state statute.” Longmont, No. 2016 CO 29, at *26. The Supreme Court, however, dismissed this argument – which relied heavily on Robinson Twship v. Comm., 83 A.3d 901 (Pa. 2013) – by concluding that it had no foundation in Colorado law and would effectively render other provisions of the Colorado Constitution unnecessary.

Notwithstanding the Supreme Court of Colorado’s twin decisions in Longmont and City of Fort Collins, attempts in Colorado to enact local government regulation of oil and gas development are unlikely to cease. Indeed, activist groups tried – and failed – to place anti-fracking measures on the November 2016 ballot, making Colorado a state to monitor.

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