Colorado District Court Judge D. D. Mallard granted a motion for summary judgment in the case brought by the Colorado Oil and Gas Association (“COGA”), and the Colorado Oil and Gas Conservation Commission (“COGCC”) against the City of Longmont, holding in favor of the plaintiffs and enjoining Longmont from enforcing a ban on hydraulic fracturing approved by voters in 2012.
While hydraulic fracturing has been used in Colorado since the 1970’s, the advancement and prevalence of horizontal and directional drilling has brought drilling operations closer to populated areas. As a result, five municipalities have held elections within the past two years to determine whether to allow fracking. In November 2012, voters of Longmont approved a measure banning fracking and the storage and disposal of fracking waste within the city under the theory that the action was a valid exercise of the city’s home rule, police, and land use authorities.
Immediately thereafter, COGA filed suit against Longmont. COGCC joined the suit shortly thereafter, arguing that COGCC has preeminent authority to issue oil and gas regulations within the state of Colorado.
The Court declined the defendants’ invitation to ‘establish a public policy that favors protection from health, safety, and environmental risks over the development of mineral resources,’ holding that such an issue is one for the legislature or a different court to decide.”
In the opinion, the court held that “Longmont’s ban on hydraulic fracturing creates a patchwork of oil and gas extraction methods that inhibits what the General Assembly has recognized as a necessary activity and it impedes the orderly development of Colorado’s mineral resources.”
The opinion went on to state that Longmont’s ban serves to impair the correlative rights of mineral owners outside of the city and impedes the efficient production of oil and gas that fracking allows. Nonetheless, Judge Mallard included a stay of injunction allowing the ban to continue pending an appeal.
The defendants have stated that they intend to appeal the decision. The issue could be placed before voters this fall, as U.S. Representative Jared Polis is backing two ballot initiatives which would alter the state’s constitution regarding regulation of the oil and gas industry.
This article was authored by Jeremy D. Cottrell, Jackson Kelly PLLC. For more information on the author, see here.