Unless the Colorado Supreme Court is determined to abandon its own clear precedent, it’s hard to see how the justices can plausibly uphold Longmont’s ban on hydraulic fracturing and Fort Collins’ five-year moratorium on the technology.
The legal issues aside, a retreat by the high court on this issue would be just plain bad for Colorado, too. The standard the court set in 1992 when it ruled that Greeley’s ban on oil and gas wells was illegal makes eminent sense from a policy standpoint.
Yes, there are land use, noise, transportation and a variety of other above-ground issues around drilling in which local governments need to have a powerful voice and considerable authority. But they shouldn’t be able to disrupt the state’s obvious interest in the orderly and safe production of energy or overturn the long accepted and logical primacy of the state in the regulation of oil and gas development.
And they shouldn’t be able to seize mineral property rights, either.
Longmont’s policy is most clearly beyond the pale because its voters flatly banned fracking in 2012. Fort Collins, by contrast, imposed a five-year moratorium on fracking in 2013, also in a referendum.
But as a practical matter, a five-year moratorium is of such duration that it is essentially a ban, especially since there is no reason to believe it wouldn’t be extended again if the same anti-fracking sentiment exists in the city when it expires.
It’s one thing to impose a moratorium of several months to iron out, say, an appropriate land-use plan, but that’s not what Fort Collins did. Its purpose was to stop fracking, but proponents realized a flat ban would be at greater risk in court.
At last week’s hearing, an attorney for Longmont argued that companies can still extract oil and gas through alternative technologies, meaning drilling itself hadn’t been banned. But hydraulic fracturing is in fact used in the overwhelming majority of drilling operations in Colorado. If it weren’t considered vital to today’s production of oil and gas, the industry would abandon it.
An attorney for TOP Operating Co. clearly disagreed with the city’s assessment. A attorney Thomas Kimball told the court, “This is not a philosophical exercise for TOP. They’re an operator in Longmont that has significant drilling rights in Longmont and unless this fracking ban is overturned, this fracking ban has rendered those oil and gas rights virtually worthless.”
Over the past few years Colorado has revamped and tightened numerous regulations that govern drilling, and that includes rules for fracking. But now it is time to draw a line. The high court should rule against outright bans as well as their close cousin, the lengthy moratorium.
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