Suing Cities To Force Fracking: A Tough Turd To Shine

FRIDAY UPDATE: The Colorado Independent's John Tomasic reports on a letter sent from Rep. Jared Polis to Tisha Schuller, president of the the Colorado Oil and Gas Association:

“Ms. Schuller,” the letter begins. “Please stop suing the communities I represent.”

“Elections matter. In a democracy both sides get to make their case and the people have their say. In the lead up to the recent election, COGA made its case by spending approximately $900,000 in an attempt to defeat the four ballot measures to ban or extend drilling moratoria on the hydraulic fracturing process (“fracking”). Still, the majority of Fort Collins, Boulder, Lafayette and Broomfield chose to pass measures to extend drilling maratoria or fracking bans…

“I ask you to immediately withdraw your lawsuits against Fort Collins and Lafayette. Colorado home rule communities have held these rights for decades: the right to determine how their own city or town will look and feel; the right to decide between an expanding extractive industry and the value of their homes; and the right to balance increased development with the health and quality of life of community residents. Local governments have authority to regulate oil and gas land use activities because oil and gas operations are matters of local concern that directly involve the use of land and are an important issue for residents and neighborhoods.”

—–

Fracking fluid.

Fracking fluid.

As the Fort Collins Coloradoan reports:

The city of Fort Collins will be spending the next several months juggling two monumental tasks — studying the drilling process known as hydraulic fracturing and defending its fracking moratorium against a new lawsuit.

On Tuesday, the Colorado Oil and Gas Assocation, an industry advocacy group, filed suit against Fort Collins and Lafayette. The cities are part of a group of four municipalities that recently passed restrictions on fracking, a process that injects water and a mix of chemicals into the earth to extract natural gas. Both COGA and the Colorado Oil and Gas Conservation Commission, the state’s regulatory agency, are currently embroiled in lawsuits against Longmont, which banned fracking in 2012…

Meanwhile, many questions about the lawsuits’ next steps have been unanswered, and are likely to remain so now that COGA has legally challenged the city’s vote. Spokesmen for both the COGCC and COGA have declined to comment officially on the litigation process, as has the city of Fort Collins.

The Boulder Daily Camera's John Aguilar:

Hours before the [Lafayette] council convened Tuesday evening, the Colorado Oil & Gas Association announced that it had filed suit against Lafayette and Fort Collins challenging the legality of ballot measures passed last month that ban or limit new drilling activity.

The association, which represents oil and gas operators in Colorado, stated in a news release that the bans are "illegal since state regulations specify and the state Supreme Court has ruled that oil and gas development, which must employ hydraulic fracturing or fracking, supersedes local laws and cannot be banned."

The Coloradoan reports that lawsuits have not been filed against the "fracking" moratoriums passed in Boulder or Broomfield, mostly because there aren't fracking operations currently underway in those jurisdictions. These latest suits were filed by the industry representative Colorado Oil and Gas Association, following a lawsuit brought by the public Colorado Oil and Gas Conservation Commission last year against the city of Longmont's similar measure. So far, the COGCC hasn't joined in these latest suits against Lafayette and Fort Collins. Pro-drilling forces point to a 1992 Colorado Supreme Court decision, Voss v. Lundvall Brothers, which held that the Colorado constitution "prevents a home-rule city from exercising its land-use authority so as to totally ban the drilling of oil, gas, or hydrocarbon wells within the city."

Following the passage of the local fracking limits last month, we were genuinely surprised that Gov. John Hickenlooper's first response was not to acknowledge the local concerns about the safety of hydraulic fracturing for oil and gas, but to reiterate the rights of oil and gas companies to access mineral rights wherever they are held. In doing so, he validated fears vocalized by proponents of these local measures:

"The state hasn't been as proactive as people want to protect against environmental impacts," Lafayette's new mayor, Christine Berg, said this week. "To me, (the ballot measure) is more about home rule and the right to determine industrial uses in our community." [Pols emphasis]

Switching from the local to statewide politics, there's much discussion of a possible statewide measure to either ban or significantly toughen regulations on the practice of hydraulic fracturing. Oil and gas industry boosters seem to want to confine that possible debate to a total statewide ban on the fracking–because this would be the most drastic and economically damaging remedy. There are some environmental activist hard-liners who want a total ban, but most conservationists don't think that's realistic. And it's not–a major energy production state like Colorado just isn't going to ban the process used in virtually all oil and gas production today.

A more workable next step would be a statewide constitutional amendment that mandates more rigorous protections statewide, and (most importantly) legitimizes the rights of local communities to control drilling within their boundaries. Proponents of the local fracking initiatives argue that the mandate for "uniformity" in drilling regulations statewide reduces those regulations to the lowest common denominator. If local communities had more trust in state regulators to protect them, we likely wouldn't be having this debate at all.

It's widely understood that Gov. Hickenlooper feels personally affronted by the passage of fracking bans in local communities under his watch. After all, as a popular liberal Democrat who happens to be a strong ally of the oil and gas industry, a big part of Hickenlooper's job was to be a peacemaker between the industry and conservationists.

It is Hickenlooper's failure to broker that peace, and ham-fisted alienation of fellow liberals, that has led to this confrontation. The sooner he realizes that and makes amends, the better for him and the oil and gas industry. If Hickenlooper doesn't change course, and soon, he may find himself sidelined as voters take statewide action of their own.

8 Community Comments, Facebook Comments

  1. Duke CoxDuke Cox says:

    It is Hickenlooper's failure to broker that peace, and ham-fisted alienation of fellow liberals on the issue, that has led to this confrontation.

    There is some talk that the governor has been caught between a rock and a hard place because he rushed to announce his air quality rules without making sure all the stakeholders were in on the deal…on both sides. He is sinking under the weight of front range public opinion and needs any straw he can grasp.

    This is going to be a very interesting winter…

  2. ajb says:

    COGA is a trade group, right? Do they have any legal standing to sue? I didn't think that trade groups drilled wells.

  3. ClubTwitty says:

    COGA is made up of oil and gas companies–from Oklahoma, Texas, even Canada, as well as Colorado–I would think they can establish standing.  They will likely need some exec from some oil company to file the standing affidavit, but I don't think that will be a burden.  They probably need one in each jurisdication that can show material harm.  I would like to see the issue of fair severance tax AND stronger regulations + local jurisdictional rights on the ballot.  Make the oilies spend spend spend spend.  The one thing they care about, afterall, is cash.

    And BJ Nikkel needs the work.   

  4. Duke CoxDuke Cox says:

     

    One more thing…

     

    There are some environmental activist hard-liners who want a total ban, but most conservationists don't think that's realistic.

    Pols…can you expound on this and tell us who doesn't think that…and why? Making a town or city unattractive for O&G development can be accomplished by creative setbacks, road restrictions, fees, and other requirements that make it possible, but not terribly practical to drill within a county or municipal entity.

    It is just a question of whether zoning laws supercede state regulatory authority for an industry. The now famous "Gunnison Case" held that local jurisdictions DO have authority to regulate industry in many, but not all, ways.

     This is from a Littwin piece in the Colorado independent Jan. 2012;

     

     “In effect, local governments can proceed to argue that closed-loop systems that capture all gases and emissions, sound barriers, non-toxic frack fluids and other mitigating measures do not present ‘material obstructions’ to the state’s interests, but rather that they ‘materially harmonize’ the local government need to control land use and protect public health and safety with the state’s interest in oil and gas extraction.”

    http://www.coloradoindependent.com/110207/oil-and-gas-activist-groups-buoyed-by-gunnison-county-district-court-ruling

     

  5. ClubTwitty says:

    Colorado communities are standing up all over and will not be bullied by big money oil and gas.  

    After twice beating back (against long odds) BLM attempts to lease the valley, the North Fork is seeking its own solution.  

    “The North Fork Alternative Plan offer reasonable recommendations to make sure that we keep the North Fork the vibrant, beautiful, creative and agricultural hub that it is,” said Brent Helleckson owner of Stone Cottage Cellars and representative of the West Elks Winery Association. “Vintners, restaurateurs, lodge owners, artists and artisans have spent more than a decade developing vineyards and tasting rooms, cafes, and hotels, marketing the area, putting down roots; the North Fork plan would go a long way to protect investments this community has already made.”

    The North Fork Alternative Plan was developed by a group of area stakeholders representing business, agriculture, resource, and conservation interests in the valley.  Since first presented to the public in March 2013 the North Fork Alternative Plan has gained widespread and broad support.

    “The Town of Paonia became a formal supporter of the North Fork plan early on,” said Amber Kleinman a trustee on the Paonia Town Council. “It’s a sensible and prudent, resource-based approach to protecting what is important to the Town and our residents—clean water, incredible scenery, and a rural lifestyle.  People don’t move to Paonia to live in an industrial zone.”

  6. reubenesp says:

    Following the passage of the local fracking limits last month, we were genuinely surprised that Gov. John Hickenlooper's first response was not to acknowledge the local concerns about the safety of hydraulic fracturing for oil and gas, but to reiterate the rights of oil and gas companies to access mineral rights wherever they are held.

    Hick's fixation on "takings" from mineral rights owners has come back to bite him. Longmont, for example, owns 90% of the mineral rights inside its city limits. To the extent that the other cities also own the mineral rights inside their city limits, new fracking permits cannot be granted (per the voters), and no court can force them to.

     

     

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