Goodbye to the five-year ‘timeout’

Paul Danish

In what must be the most predictable court decision of the decade, the Colorado Supreme Court last week struck down Longmont’s ban on fracking and Fort Collins’ five-year anti-fracking moratorium. Both were the product of ballot initiatives produced by anti-fracking activists and passed by votes of the people in 2012 and 2013 respectively.

And both were in obvious conflict with state law — the Oil and Gas Conservation Act (or Title 34, Article 60 of the Colorado Revised Statutes, 2015 version).

The act explicitly gives the Colorado state government primacy when it comes to regulating oil and gas production in Colorado, and it provides that state law preempts local ordinances and charter amendments. Local governments can use their zoning powers and land use regulations to regulate the industry only when they don’t conflict with state law.

The statute’s legislative declaration explicitly asserts the state’s overriding interest stems from the fact that oil and gas deposits don’t respect city and county lines, and rules governing oil and gas production in one jurisdiction can affect its production in adjoining ones in ways that can have adverse impacts on public health, wildlife, the environment and (wait for it) property rights.
It’s a pretty simple principle to understand. Legally it’s not even very interesting.

More interesting is what the court had to say about the Fort Collins’ moratorium — beyond the finding that it conflicted with the Oil and Gas Conservation Act in terms of the preemption issue.

Historically, local governments have been allowed to impose moratoriums to deal with emergency situations, to study newly-emergent problems and to write regulations to deal with them.
A city might declare a moratorium on issuing new water taps until it completed the expansion of its water treatment plant, or a moratorium on the approval of new subdivisions until it completed a revision of its land use regulations, for instance.

Also historically, such moratoriums were allowed only if they were of limited duration — 60 to 120 days were typical — six months was pushing the envelope. In other words, they are viewed as relatively brief “timeouts” taken in response to a compelling issue.

A five-year moratorium comes with a serious smell test problem, and the court said Fort Collins’ flunked it.
Fort Collins’ moratorium “is not merely a regulation; it is a prohibition,” it ruled.

Like Fort Collins, both the City of Boulder and Boulder County adopted moratoriums rather than outright bans on fracking.
Chances are, Boulder County’s is now on even shakier legal ground than the one in Fort Collins was. That’s because Boulder County first adopted a moratorium in 2012 — and over the next 10 months wrote and adopted new oil and gas permitting regulations. By adopting them the commissioners eliminated the need for continuing the moratorium.

Then, with the new regulations in place, they extended their moratorium until July 1, 2018.

But since the regulations were a done deal they needed a new reason for the extension, and the only one they could find was pretty lame — the fact that the National Science Foundation had a study underway, led by University of Colorado Boulder and with participation from NOAA, NREL, UCAR and other state universities and federal research institutions, that was focused on all aspects of oil and gas development in the Rocky Mountain region.

Conveniently, the study won’t be completed until 2017 — after which the County will need some time to evaluate it.
Good luck with that one. A five-year study not focused on a clear and present problem may be many things, but grounds for calling a “timeout” isn’t one of them. Let alone grounds for cancelling the season. And the next four.

The anti-frackers real beef is with oil and gas production, which they want to stop. The Colorado legislature thinks it should not only be allowed but encouraged, and has written that view into the law. The Supremes are just following the law, not making it up as they go along.

Ninety-five percent of the oil and gas wells drilled in the United States are fracked. Opposition to fracking is not just opposition to a particular industrial process, it’s opposition to American domestic oil and natural gas production — and a deliberate attempt to destroy it before alternatives to replace it can be put in place.

I think that is a direct threat to both American national security and to the American economy. It is also, to put it charitably, irrationally self-destructive. It is not saving the planet. It is saving Saudi Arabia’s market share.

However, if you have your heart set on preventing fracking, there is one way to do it that will not get laughed out of court.
If you want to stop fracking and leave the oil and gas in the ground, do it the way tens of thousands of acres of Boulder County open space has been saved over the last 50 years: Start an underground open space program. Buy the mineral rights and leases in areas where you don’t want oil and natural gas production to take place.

This opinion column does not reflect the views of Boulder Weekly.


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