The city of Ft. Collins cannot lawfully ban energy production through hydraulic fracturing, a Colorado court has ruled. The court’s decision overturned a city ordinance enacted after voters in the liberal university town approved a November 2013 ballot initiative imposing a five-year ban on fracking.
The ordinance stated, “The people of Fort Collins seek to protect themselves from the harms associated with hydraulic fracturing, including threats to public health and safety, property damage and diminished property values, poor air quality, destruction of landscape, and pollution of drinking and surface water.” It also stated the city would study fracking issues during the five-year moratorium.
The State of Colorado District Court in Laramie County noted hydraulic fracturing is used in virtually all oil and gas wells in Colorado. Accordingly, banning fracking in Ft. Collins effectively banned oil and natural gas production there, at least under standard industry practices.
Home Rule Is Limited
The court affirmed Ft. Collins is a “home rule” city with the full right of self-government on local and municipal matters. However, the court explained, the right of full self-government does not apply to issues of mixed local and state concern. Oil and natural gas production, including fracking, are just such a “mixed” issue, the court ruled, as evidenced by Colorado’s Oil and Gas Conservation Act giving the Colorado Oil and Gas Conservation Commission authority to regulate oil and natural gas drilling throughout the state.
State Law Preempts Local Ban
The court ruled the Ft. Collins fracking ban is implicitly preempted by the Act. The court observed the commission has enacted comprehensive oil and gas drilling regulations throughout the state.
“The five-year ban on hydraulic fracturing substantially impedes the state’s significant interest in fostering efficient and equitable oil and gas production,” the court stated.
In addition, “The City’s five-year ban conflicts with the Oil and Gas Conservation Act because it prohibits what the Act expressly authorizes the Commission to permit. Section 34-60-106 (2)(b) gives the Commission the authority to regulate the ‘shooting and chemical treatment of wells,’ along with a host of other means to comprehensively regulate the development and production of oil and gas wells in Colorado,” the court explained.
Also, the court noted, the fracking ban would unlawfully nullify existing, legally enforceable contracts by which energy companies had obtained permission to engage in fracking in Ft. Collins.
Alyssa Carducci ([email protected]) writes from Tampa, Florida.
