Supreme Court decision ends Longmont fracking ban

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Another motivating factor for Longmont’s fracking ban was this Top Energy Company well, Rider No. 1, which had been leaking benzene for years right next to Trail Ridge Middle School on the east side of town.
Joel Dyer

The Colorado Supreme Court ruled against the City of Longmont’s voter-approved 2012 fracking ban on Monday, May 2, stating it conflicts with state law and is therefore “invalid and unenforceable.” Furthermore, the Court ruled that “the inalienable rights provision of the Colorado Constitution does not save the fracking ban from preemption by state law.”

The Opinion of the Court was delivered by Judge Richard Gabriel, who was appointed to the Colorado Supreme Court by pro-fracking Governor John Hickenlooper in June 2015, and it came at the same time as a similar opinion in the case of Fort Collins’ five-year fracking moratorium.

“It is the government whose first priority it is to be the protection of its people and clearly they did not do that and they did not care to do that,” says Kaye Fissinger from the grassroots organization Our Health, Our Future, Our Longmont, who was party to the case along with the City of Longmont, Food and Water Watch, Earthworks and Sierra Club.

Our Longmont has been fighting encroaching oil and gas development within the city since 2011 when citizens realized Top Operating Company had plans to build drilling platforms on the banks of Union Reservoir to access nearly 40 well sites under the water.

Around the same time, residents also became aware that the company’s Rider No. 1 well near Trail Ridge Middle School had been leaking high levels of benzene and contaminating groundwater for years.

Top Operating Company joined the Colorado Oil and Gas Association (COGA) and the state’s Colorado Oil and Gas Conservation Commission (COGCC) in the lawsuit against Longmont and its charter amendment fracking ban.

In 2015, a district court ruled in favor of the state and upon Longmont’s appeal, the Court of Appeals punted the decision to the Supreme Court last August. The May 2 ruling effectively ends the case, as it has to do with states’ rights and cannot be appealed to the federal Supreme Court.

“At this point there isn’t a whole lot of options for us to pursue,” says Dennis Coombs, Longmont mayor. “But I feel really confident that our city [regulations], they protect 97 percent of the city from gas and oil development. I’m glad that we were to get at least that backstop in place for the City of Longmont.”

Coombs also says the Court’s ruling does not appear to have any immediate ramifications, as he’s not aware of any impending permits that could now start operations.

After the ruling on Monday, other jurisdictions around Colorado with similar bans or moratoriums were left scrambling to understand how the Court’s opinion could affect their local jurisdictions.

In Broomfield, voters approved a five-year fracking moratorium via charter amendment in November 2013, which is currently being challenged by COGA. At the end of June 2015, a district judge temporarily suspended the case at Broomfield’s request, pending the outcome of the Longmont and Fort Collins’ cases.

“Those jurisdictions are the only parties in the case but the ruling is of consequence to everybody,” Broomfield County Attorney Bill Tuthill says. “The practical effect of the court’s ruling is that it invalidates our moratorium.”

Tuthill expects Broomfield to stop enforcing the moratorium, although he also expects the language will stay in the City’s charter.

It was the fear of massive oil and gas operations like the one pictured above next to Longmont’s Union Reservoir that originally helped to motivate the city’s residents to support a ban on fracking. They feared that fracking under the lake would contaminate it.
It was the fear of massive oil and gas operations like the one pictured above next to Longmont’s Union Reservoir that originally helped to motivate the city’s residents to support a ban on fracking. They feared that fracking under the lake would contaminate it.

The City of Boulder and Boulder County also currently have five-year fracking moratoriums in place until the summer of 2018.

“The Supreme Court decisions were pretty specific to those communities [of Longmont and Fort Collins],” says Elise Jones, Boulder County Commissioner. “In terms of how it impacts us we are still taking a look at that and doing analysis about the legal implications. … We have our attorneys looking over the ruling with a fine tooth comb to find out how it does or does not impact us.”

COGA and its lawyers don’t see any delineation between jurisdictions in the opinion, however. Shortly after the Court announced its ruling, COGA President and CEO Dan Haley and Attorney Mark Matthews said in a press call with reporters the rulings apply to all municipalities in Colorado. “What the state permits local governments cannot ban,” Haley said.

“It should put a stop to local governments passing legislation that conflict with COGCC regulations,” Mathews followed.

While Boulder County and the City of Boulder continue to review the opinion for its potential impacts on their laws, Matthews said both moratoriums are illegal and should be withdrawn and unenforced. “Legally that’s what they should do,” he said. He continued to say that if the local governments fail to take this step, “Then it is open for any party including COGA to get a preliminary injunction forcing the County and City to comply with the Supreme Court ruling.”

Haley said COGA has no intention of doing so at this time. Rather, he said he wants to move forward in a collaborative manner with local jurisdictions.

But activists and local officials agree the Court’s opinion does nothing to allay citizen’s concerns.

“This ruling does nothing to solve the ongoing concerns that many citizens and communities are feeling about the lack of local control that the state recognizes over oil and gas siting decisions,” Jones says. “Folks that have been concerned and working to get a more appropriate balance between state and local governments will only double-down in terms of continuing those efforts.”

Fissinger for one is not done fighting to protect her community from what she feels are the dangers of fracking.

“I do want to emphasize that this is far from over,” she says, referring to the community control and 2,500-feet setback constitutional amendment initiatives currently gathering signatures to put them on the November ballot.

“We are moving forward with those and they are a must pass at this time,” Fissinger says. “In many respects, that has always been the plan B because even though the Colorado constitution does provide guarantees to people, they are not explicit guarantees with respect to this. And the initiatives will provide just that, explicit guarantees to the people of Colorado.”

After issuing its opinion on Monday, the Supreme Court will wait 43 days before issuing its final mandate, allowing the opportunity for further appeal or a motion for reconsideration to be filed. It remains unclear, but unlikely, that any jurisdictions will do so at this time.