State law pre-empts local fracing bans, Colorado Supreme Court rules

The Colorado Supreme Court overturned statutes that ban hydraulic fracturing in two communities along the state’s populous Front Range because they conflict with state law that authorizes the technology’s use.

The May 2 decision is final because it resolves a state matter and cannot be appealed to a federal court, Colorado Oil & Gas Association Pres. Dan Haley said. Longmont had banned fracing outright, while Fort Collins imposed a 5-year moratorium on the unconventional exploration and production technology. COGA sued to overturn both statutes.

“We have long held that these local bans are illegal,” Haley told reporters in a teleconference. “While we’re excited that the Colorado Supreme Court’s decision came down as it did, this does not change COGA’s commitment to work closely with communities for responsible oil and gas development.”

Mark Mathews, an attorney in Brownstein Hyatt Farber Shreck LLP’s Denver office who argued the case for COGA before the state supreme court, added, “The decision held that Longmont’s ban on fracing and Fort Collins’s 5-year-ban moratorium within city limits are pre-empted by the state’s regulation of the oil and gas industry.”

“Local governments have some say in the land use process with regard to oil and gas wells,” he explained. “But these decisions show that they can’t enact bans that conflict with [Colorado Oil and Gas Conservation Commission] regulations.”

In a statement, Fort Collins City Attorney Carrie Daggett said that it would be premature to comment before the city fully reviewed the state high court’s decision.

“These issues are complex, and we'll thoroughly examine the decisions relative to Fort Collins and Longmont,” she said. “However, it is clear that the Supreme Court has found the Fort Collins moratorium on hydraulic fracturing is in operational conflict with Colorado law and is therefore pre-empted.”

Asked what COGA would like other Colorado communities’ governments that imposed similar fracing bans to do following the high court’s decision, Haley said the group hoped they would withdraw the statutes and try to work constructively with the industry and property owners.

“I think this is the time where all the stakeholders need to sit down and develop solutions that work for all of us,” he maintained. “We want to move beyond divisive battles of the past.”

Contact Nick Snow at nicks@pennwell.com.

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