Colorado “fracking” bans may not survive court challenges

Although voters in at least three of four Colorado cities (Boulder, Lafayette, and Fort Collins – a close vote in Broomfield is currently undergoing an official recount) passed bans on “fracking” within municipal jurisdiction, the prohibitions are almost certain to draw legal challenges, supported by decades of legal precedent pre-empting outright bans at the local level. A local ordinance implemented last year by the neighboring Longmont city council similarly banning “fracking” in that jurisdiction has already drawn a court challenge (initially filed by the Colorado Oil & Gas Conservation Commission in July 2012).

After voters ratified the city council’s action in a vote to amend the city charter in November 2012, the Longmont fracking ban was again challenged in court by the Colorado Oil and Gas Association in December and joined in that lawsuit by the State of Colorado in July 2013. A foundational Colorado Supreme Court precedent (Voss v. Lundvall, 1992) upheld statewide legislation (Oil and Gas Conservation Act) prohibiting local (city/county) government from “exercising its land-use authority so as to totally ban the drilling of oil, gas, or hydrocarbon wells” within its jurisdiction – although the court did allow for some local regulation and control, it ruled outright bans impermissible.

Although Governor Hickenlooper has not yet taken a position on whether the state will file or join any new lawsuits challenging the most recently enacted “fracking” bans

A spokesman for the governor’s office said there “may or may not be” cases filed. “It would be up to a court to determine the legality of the bans if additional lawsuits are filed,” he said. (“Colorado’s fracking bans could fall before courts” Reuters 7 Nov 2013)

the ongoing challenge to Longmont’s ban would certainly be enough to affirm precedent and strike down this year’s round of municipal moratorii.

Irrespective of the governor’s decision (“to file or not to file” – TBD), industry groups such as the Colorado Oil and Gas Association are likely to file court challenges independent of the state’s action (or inaction).  Although hardly inexpensive, such legal challenges are more likely to meet with success (and prove a better investment) than pouring more money into the pockets of the inept political operatives running the anti-fracking campaigns (spending more than $600,000 – a nearly 40:1 funding advantage – in return for resounding political and public-relations defeats).

Fracking activists are expected to put a statewide ban on the 2014 ballot – unless the municipal bans are first struck down by the courts, it’s likely that local bans passed this year will be used as a model, both tactically and legally.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.

Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.