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Friday, May 6, 2016

Colorado Supreme Court Finds Fracking Ordinances Preempted by State Law

In 2012, the voters of the City of Longmont, Colorado approved adding an ordinance to the City's home-rule charter that provided as follows:
It shall hereby be the policy of the City of Longmont that it is prohibited to use hydraulic fracturing to extract oil, gas, or other hydrocarbons within the City of Longmont. In addition, within the City of Longmont, it is prohibited to store in open pits or dispose of solid or liquid wastes created in connection with the hydraulic fracturing process, including but not limited to flowback or produced wastewater and brine.
The Colorado Oil & Gas Association subsequently sued the City, claiming that Longmont's ordinance was preempted by the state of Colorado's "Oil and Gas Conservation Act." The Association argued that the following provisions of the state law preempted local regulation of the fracking industry, even regulations adopted by home rule municipalities:
It is the intent and purpose of this article to permit each oil and gas pool in Colorado to produce up to its maximum efficient rate of production, subject to the prevention of waste, consistent with the protection of public health, safety, and welfare, including protection of the environment and wildlife resources, and subject further to the enforcement and protection of the coequal and correlative rights of the owners and producers of a common source of oil and gas, so that each common owner and producer may obtain a just and equitable share of production therefrom. § 34-60-102(1)(b), C.R.S. (2015).
The state supreme court agreed with the Association, and struck down Longmont's ordinance. Although the court acknowledged that the Act did not expressly preempt local regulation of oil and gas operations, the local ordinance "impermissibly frustrate(s) the operation of the statewide law" because it had extra-territorial impact on oil and gas operations outside of Longmont. In the same case, the court also struck down a Ft. Collins ordinance that also regulated fracking operations. City of Fort Collins v. Colorado Oil & Gas Association, 2016 CO 28 (Colo. May 2, 2016)

Post Authored by Julie Tappendorf


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