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Activists ask court to lift injunction on Longmont’s fracking ban after passage of new oil, gas law

Industry says banning development is illegal
Colorado voters reject limitations on fracking
Posted at 3:46 PM, Aug 14, 2019
and last updated 2019-08-14 22:23:59-04

BOULDER, Colo. – Two activist groups have filed a motion in Boulder District Court seeking to have Longmont’s fracking ban, which was approved by voters in 2012 but overturned in 2014 and 2016 court decisions, reinstated after the passage of a new local control oil and gas law this year – setting up perhaps a precedent-setting court fight.

Colorado Rising, the group behind the 2018 Proposition 112, and Our Longmont filed the motion Wednesday, asking the district court judge to lift the injunction stopping Longmont from enforcing the ban after the passage of SB19-181 this spring during this year’s legislative session.

But the industry and state regulators pushed back against the motion, saying the law never intended to outright ban oil and gas development.

Colorado Rising’s attorney Joe Salazar, who is a former state lawmaker, says the new law should allow for the reopening of the case and reinstatement of the fracking ban because it allows local governments to have control over oil and gas development within their jurisdictions. He says the law does not explicitly say that cities or counties could not outright ban fracking in order to protect people’s health, welfare and the environment.

Longmont voters approved the ban in 2012 with about 60% of voters supporting the measure. Our Longmont, a group of residents opposed to fracking, was the main driver behind the ballot measure that outlawed fracking within city limits.

The Colorado Oil and Gas Association, Top Operating Company and the Colorado Oil and Gas Conservation Commission (COGCC) sued to block the ban from going into effect, and the Boulder District Court agreed in 2014, saying that the ban was not in accordance with the Colorado Oil and Gas Conservation Act or the COGCC’s rules.

The court wrote at the time that it should be up to the legislature or another court to make the decision.

“The Court recognizes that some of the case law described above may have been developed at a time when public policy strongly favored the development of mineral resources. Longmont and the environmental groups, the Defendant-Intervenors, are essentially asking this Court to establish a public policy that favors protection from health, safety, and environmental risks over the development of mineral resources,” the court wrote. “Whether public policy should be changed in that manner is a question for the legislative or a different court.”

Nearly two years later, the Colorado Supreme Court affirmed the district court’s decision, saying Longmont’s ban conflicted with the act.

Last year, the Longmont City Council agreed to pass a measure in which they paid two oil and gas companies $3 million in future mineral rights in order for the companies to agree to stop drilling at eight well sites and end their pursuit of 11 future drilling sites. But horizontal drilling within city limits is not prohibited if those lands are accessed from outside the city limits.

Now, after the passage of SB19-181, which directs the COGCC to prioritize public health, safety and the environment over industry development, and explicitly says that “a local government’s regulations may be more protective or stricter than state requirements,” Salazar argues that Longmont should now be allowed to enforce its ban.

“There is no language in SB 19-181 prohibiting local governments from implementing moratoria or bans against fracking within their jurisdictions, particularly where the local government aims to protect and minimize adverse impacts to public health, safety, and welfare and the environment. § 29-20-104(1)(h).” he wrote in the motion. “In fact, SB 19-181 is absolutely silent about moratoria and bans and it does not nullify Article XVI. Simply put, if the legislature intended to prohibit local governments from banning oil and gas operations within their jurisdictions, it would have clearly said so.”

He argued that the Longmont ban is now no longer in operational conflict with the Colorado Oil and Gas Conservation Act, and as such, the court should reopen the case and lift the injunction.

The push by Our Longmont and Colorado Rising is the first major effort by environmental activists to make large changes under the new law. On the other end, Weld County has created its own oil and gas energy department and has already been checked by the COGCC for trying to make its own rules outside the COGCC’s authority, the commission said last month.

The city of Longmont, which was one of the parties in the original case, has not taken a position on the new filing, Salazar said. Another defendant in the original case, Food & Water Watch, did not object to the filing.

But the city of Longmont said Wednesday afternoon that while it was not involved in the decision to file the motion, it would review it.

"The Longmont City Council has not reviewed the court filing from an environmental group that is seeking to reopen a court case that prohibits the City of Longmont from enforcing a fracking ban within city limits," the city said. "The Council has not taken an official position at this time, but will be reviewing it with their legal team to determine the best course of action for Longmont."

“I would not have brought the lawsuit, and neither would the residents, if we didn’t feel that we had a strong legal argument to make,” Salazar said. “As a matter of fact, I think the more money [the Colorado Oil and Gas Association] throws at this case demonstrates the desperation that they’ll be feeling about it. … I don’t think they’re going to have very strong legal grounds to stand on.”

COGCC Director Jeff Robbins said in a statement that the bill does not intend to ban development and said the commission was continuing to work on the implementation of the bill in the rulemaking process.

“SB 181 gives local governments a voice and the opportunity to make decisions on what’s best for their communities while putting health and safety first,” Robbins said. “This bill does not have the intent to ban oil and gas development. The COGCC is and will continue to work with all parties involved – especially during the rulemaking process.”

Colorado Oil and Gas Association (COGA) President and CEO Dan Haley said the Longmont ban should remain illegal and said the industry was continuing to work with the COGCC in the rulemaking process.

“Banning responsible energy development in Colorado is illegal. Taking someone’s property is illegal. The courts have said so. Our elected leaders have said so,” Haley said. “This is political theater, plain and simple. We trust the state of Colorado will also vigorously defend against this political ploy.”

Haley pointed to sentiments expressed by Democratic leadership during the lawmaking process this spring that the measure did not intend to be a ban on development. But Salazar said the language of the law was clear.

“What the law clearly says is that the section is not to be interpreted to prohibit local governments from adopting stricter or more-protective measures. That’s exactly what the law says,” Salazar said at a news conference Wednesday. “If the law says that, and it’s void of any reference to prohibiting, bans, or what have you, then that’s what the courts are going to go with. Not what a politician said on the House floor, or out in the community, or even what the COGCC said because they are not the legislature.”

He said that should the court agree to take the case up and agree to lift the injunction on Longmont’s ban, he believed that more local municipalities would try to create their own rules.

"It gives a lot of hope that if they adopt these kind of measures bans or even extended moratoria then they will be upheld as not being in conflict with state law," he said.