December 05, 2013 02:45 PM UTC

Suing Cities To Force Fracking: A Tough Turd To Shine

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• by: Colorado Pols

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.”

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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.