In its appeal to the Colorado Court of Appeals over a 2012 voter-approved fracking ban, Longmont is stuck between two state Supreme Court cases.
The Colorado Oil and Gas Association, the state’s largest industry group, sued in 2012 to overturn the ban. It was joined by the Colorado Oil and Gas Conservation Commission — the state agency that regulates the industry — and TOP Operating, the principal oil and gas company active in Longmont.
Longmont is appealing a July ruling by a district court judge, which said that the city’s ban on hydraulic fracturing, or fracking, conflicted with the state’s interest in regulating the oil and gas industry.
The Colorado Court of Appeals can’t set new precedent but can only follow existing Colorado Supreme Court decisions. There are two important ones that deal with this issue, and both were decided on the same day in 1992: Voss. v. Lundvall Bros. Inc and Bowen/Edwards Associates Inc. v. the Board of County Commissioners of La Plata County.
Richard B. Collins, a professor of law at the University of Colorado, teaches courses on local government and the U.S. Constitution and co-authored a 2002 treatise on the Colorado Constitution. Voss and Bowen/Edwards establish state law on the question of whether the state’s interest or a local government’s interest come first when it comes to the oil and gas industry. However, the cases come down on opposite sides of the question, Collins said.
“Those two decisions rejected what might be called extreme positions,” Collins said. “It’s funny because you rarely hear these two rulings mentioned by the same person, as it’s not convenient for most people to acknowledge that there’s two competing rules.”
Voss (the name of the Greeley city clerk at the time) occurred when Greeley voters implemented a ban on drilling oil and gas wells. Lundvall Brothers and other oil companies in the city sued and, after an appeal, the Colorado Supreme Court found in favor of Lundvall.
Justice Joseph Quinn said in the opinion that while a city still has some authority over drilling in its limits, because there was a “statewide interest in the efficient development and production of oil and gas resources,” a city could not totally ban the practice altogether.
In Bowen/Edwards, an oil company disagreed with La Plata County’s regulations requiring oil and gas developers to obtain permits. In this case, the state’s highest court found in favor of the county, saying that the county was within its rights to add on regulations as long as the regulations didn’t conflict with the state’s.
Bowen/Edwards figured into COGA’s earlier lawsuit over the city of Longmont’s oil and gas drilling regulations that the city council passed in 2012, before the fracking ban went into place. Longmont argued that based on Bowen/Edwards, there was precedent for its regulations to be more stringent than the state’s. COGA sued the city but later agreed to dismiss the suit without either party admitting fault as part of a compromise struck with Gov. John Hickenlooper that spawned the Oil and Gas Task Force. That task force finished its work in late February and delivered recommendations to the governor.
Collins said that where Longmont can argue in between these two cases is that either a ban on fracking and a ban on oil and gas drilling are not the same thing, or that the fracking ban doesn’t directly interfere with the state’s interest in oil and gas.
“It’s a question of whether it’s a conflict with state law on this subject,” Collins said. “There is no specific state law that says ‘Thou shalt be able to frack.'”
Longmont, in its appeal, makes both of these arguments, but Collins said he has a feeling it’s a long shot.
“There is very competent lawyering involved here, and the city on appeal does as well as a city can do in a case where the city has a tough road ahead,” Collins said after reading various briefs filed in Longmont’s appeal case.
Currently, Longmont’s case is working its way through the Court of Appeals system, with Longmont’s reply to several friend-of-the-court briefs filed this month due April 9.
Because other municipalities and local governments in Colorado are closely watching Longmont’s case, Collins predicts whichever side loses in the Court of Appeals will ask the Colorado Supreme Court to review the decision.
The city of Lafayette instituted a fracking ban and did not appeal when COGA sued and won, while the city of Fort Collins is appealing a similarly unsuccessful lawsuit related to its five-year fracking moratorium. Broomfield is also in a lawsuit related to its five-year moratorium on fracking. Neither the city of Boulder nor Boulder County yet face lawsuits related to each entity’s respective moratorium on oil and gas development applications.
“Given the significance of the issue, the odds that the Supreme Court would accept the case to review are rather high,” Collins said. “So I don’t think this is even close to being done.”
This article was written by Karen Antonacci from Daily Times-Call, Longmont, Colo. and was legally licensed through the NewsCred publisher network.