On May 2, the Colorado Supreme Court issued an opinion upholding a lower court ruling that the City of Fort Collins’ fracking moratorium was invalid. The opinion can be found here. This case is the result of Fort Collins voters’ 2013 adoption of a moratorium on hydraulic fracturing and storage of related waste products within the City of Fort Collins.

The Supreme Court’s opinion ends what was, essentially, a largely symbolic effort by Fort Collins residents to oppose fracking. By enacting the ban, Fort Collins bought itself a lawsuit by the oil and gas industry – the Colorado Oil and Gas Association (“COGA”) did so. COGA argued that state law preempted Fort Collins’ moratorium, rending it invalid.

The Supreme Court recognized that a local municipality such as Fort Collins may validly regulate land use associated with oil and gas operations. However, those regulations must not “operationally conflict” with state laws and regulations. Pursuant to Colorado’s Oil and Gas Conservation Act, the Colorado Oil and Gas Conservation Commission has implemented a pervasive and comprehensive regulatory framework regarding oil and gas extraction, including fracking. The Court decided that Fort Collins’ five-year moratorium rendered the regulatory framework superfluous for a long period of time, and impeded the State’s interest in the efficient and responsible development of oil and gas resources. Thus, there was an “operational conflict.”

This case is part of a major struggle in Colorado to balance the property rights of mineral owners, the economic benefits of oil and gas production, and the environmental effects (real or imagined) of that production. Colorado courts have generally overturned efforts by Colorado municipalities to ban or seriously restrict development. The same day as it issued the Fort Collins opinion, the Colorado Supreme Court overturned a ban on fracking by the City of Longmont. In 1992, the Supreme Court overturned a ban on oil and gas development by the City of Greeley.

Posted by Jeffrey Cullers