May 02, 2016 12:39 PM UTC

Colorado Supreme Court Rules Against Cities on Fracking

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• by: Colorado Pols

UPDATE #2: Rep. Jared Polis sounds like he’s ready to fight:

“I am extremely disappointed with the bad decision today to overturn the will of the voters in Longmont and Fort Collins. It’s a blow to democracy and local control,” said Polis.  

“While at least the courts found today that local government land use authority and regulations can coexist with state regulations, the communities being hurt by unregulated fracking are looking to enact stronger measures to protect homeowners, and this case doesn’t help.

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. I look forward to continuing to help advocates in these efforts to protect our communities.”

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UPDATE: Rep. Mike Foote (D) remains hopeful despite the setback of today’s ruling:

“I’m disappointed that the people of Longmont and Fort Collins will be unable to implement measures that they deemed appropriate to address oil and gas development within their borders,” said Rep. Foote, D-Lafayette, whose district includes part of Longmont. “But a careful reading of the rulings shows that these are actually very narrow opinions. Local governments’ land use authority was reaffirmed, including for oil and gas development.”

Rep. Foote also noted that the court, in the Longmont ruling, did not dispute what it described as “the propriety of local land use ordinances that relate to oil and gas development.”

“Cities and counties may need to modify their approach somewhat,” Rep. 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.”

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KDVR FOX 31 reporting, a big ruling today that sets the stage for the next battle over oil and gas development along Colorado’s rapidly urbanizing Front Range:

The Colorado Supreme Court ruled Monday that individual cities cannot slow or ban fracking near residents because it’s a matter of state law.

In 2012, Longmont voters voted to ban fracking and in 2013, Fort Collins voters approved a five-year moratorium. The oil and gas industry sued both cities in 2013, and won rulings against Fort Collins and Longmont in summer 2014…

In its Monday ruling, the court said local cities’ attempts to stop fracking is “invalid and unenforceable.”

Conservation Colorado’s Pete Maysmith responds to today’s ruling in a statement:

We’re still evaluating the specifics of these decisions, and the Fort Collins decision appears to be particularly narrow. But, at first glance, they are disappointing.

We believe that good policy-making happens from the ground up and that local communities are best-suited to make decisions about what happens with oil and gas drilling within their borders. Local governments should have the ability to call a timeout on drilling in order to better understand its impacts and ensure safety and public health, just as they are allowed to do with other industries.

We will continue to stand with the communities that are being dramatically impacted by oil and gas drilling. Their concerns have not gone away with today’s rulings.

These decisions also 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. In order to combat this hammer, local governments must be empowered with better tools to protect their citizens from heavy industrial drilling.

There’s no question this is a setback for the local communities who sought better control over land use within their boundaries, but the fact is it was not an unexpected ruling. Colorado’s split-estate management of surface and subsurface development rights, a holdover from a era when Colorado was a mineral extraction hinterland and not a burgeoning urban population center, is simply not written to balance the needs and rights of today’s urban populations vs. mineral rights owners.

These local communities who fought back for a better deal knew they were up against long odds under current law. As much as anything, these moves were intended to provoke a statewide discussion on how to better protect neighborhoods, businesses, and schools from a heavy industry with a unique right to run roughshod over local land use authority. The response from the industry, Republican politicians, and yes, many Democrats including pro-energy Gov. John Hickenlooper, has ranged from denial to outright contempt for the concerns of opponents of “fracking” in residential areas. Rather than working toward a solution that acknowledges the problem, supporters of the industry in both parties have brushed off concerns–often offensively–and hid behind the legal status quo.

After today’s ruling, the battle shifts back to the ballot box. We’ll have to wait until August to see what energy ballot measures we’ll be voting on this November, but bigger setbacks between energy development and surface populations and a constitutional statement clarifying local control rights are major possibilities. Energy industry surrogates prefer to steer this debate into extremes like a total ban on “fracking” statewide, from which they can make more effective counterarguments, but more realistic measures may well prove much more popular. If funders like Tom Steyer and Jared Polis decide that 2016 is the year to throw down, today’s ruling against Front Range cities could become the battle cry that changes everything.

Because it’s evident now that something has to change.