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Colorado Supreme Court rules that state law pre-empts local bans

The Colorado Supreme Court on Monday struck down two Front Range cities’ prohibitions on hydraulic fracturing, saying state law takes precedence. And with that the focus shifts to the November ballot. Three initiatives to limit and regulate fracking are already in the works.

In separate and unanimous decisions, the court upheld lower court decisions and overturned Fort Collins’ five-year moratorium on fracking and Longmont’s outright ban on the practice. The court said the moratorium “operationally conflicts” with state law, while Longmont’s ban “materially impedes” state power.

None of that was surprising. The state has always maintained, and jealously defended, its jurisdiction over the “down-hole” aspects of gas and oil operations.

And in many ways that makes sense. The state, through the Colorado Oil and Gas Conservation Commission, regulates the industry statewide. Colorado has 64 counties, many of which include multiple municipalities. For every one of those entities to enact its own regulations on drilling would be unworkable, both in terms of governing and from the industry’s point of view.

Still, as La Plata County Commissioner Gwen Lachelt told the Herald, this “decision does not mean that the local control issue is going away.” It just means, at least for now, that local control will apply only to surface issues.

The court said nothing that strips local governments of their authority to regulate land use, and La Plata County has long been a leader in asserting that authority in relation to gas and oil operations. And in truth, such surface issues are the source of most conflicts between residents and the industry. Even with fracking, almost all episodes of contaminated water are the result of surface spills.

At least in terms of immediate and direct consequences, there is less to this than either the gas industry or its critics let on. With natural gas prices depressed nobody has been lining up to drill up and down the Front Range.

But with these decisions, the industry may learn the meaning of “be careful what you wish for.” Because if it did not like Longmont’s ban, it is going to hate November’s ballot.



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