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May 02, 2016 12:39 PM UTC

Colorado Supreme Court Rules Against Cities on Fracking

  • 33 Comments
  • by: Colorado Pols

UPDATE #2: Rep. Jared Polis sounds like he’s ready to fight:

“I am extremely disappointed with the bad decision today to overturn the will of the voters in Longmont and Fort Collins. It’s a blow to democracy and local control,” said Polis.  

“While at least the courts found today that local government land use authority and regulations can coexist with state regulations, the communities being hurt by unregulated fracking are looking to enact stronger measures to protect homeowners, and this case doesn’t help.

Now that the law has been interpreted, it’s up to the state legislature or the people of Colorado to act to protect our neighborhoods and homes. I look forward to continuing to help advocates in these efforts to protect our communities.”

—–

UPDATE: Rep. Mike Foote (D) remains hopeful despite the setback of today’s ruling:

“I’m disappointed that the people of Longmont and Fort Collins will be unable to implement measures that they deemed appropriate to address oil and gas development within their borders,” said Rep. Foote, D-Lafayette, whose district includes part of Longmont. “But a careful reading of the rulings shows that these are actually very narrow opinions. Local governments’ land use authority was reaffirmed, including for oil and gas development.”

Rep. Foote also noted that the court, in the Longmont ruling, did not dispute what it described as “the propriety of local land use ordinances that relate to oil and gas development.”

“Cities and counties may need to modify their approach somewhat,” Rep. Foote said, “but it’s clear that the Court has reaffirmed that local governments do have a seat at the table when it comes to oil and gas development.”

—–

Photo courtesy Rep. Jared Polis
Photo courtesy Rep. Jared Polis

KDVR FOX 31 reporting, a big ruling today that sets the stage for the next battle over oil and gas development along Colorado’s rapidly urbanizing Front Range:

The Colorado Supreme Court ruled Monday that individual cities cannot slow or ban fracking near residents because it’s a matter of state law.

In 2012, Longmont voters voted to ban fracking and in 2013, Fort Collins voters approved a five-year moratorium. The oil and gas industry sued both cities in 2013, and won rulings against Fort Collins and Longmont in summer 2014…

In its Monday ruling, the court said local cities’ attempts to stop fracking is “invalid and unenforceable.”

Conservation Colorado’s Pete Maysmith responds to today’s ruling in a statement:

We’re still evaluating the specifics of these decisions, and the Fort Collins decision appears to be particularly narrow. But, at first glance, they are disappointing.

We believe that good policy-making happens from the ground up and that local communities are best-suited to make decisions about what happens with oil and gas drilling within their borders. Local governments should have the ability to call a timeout on drilling in order to better understand its impacts and ensure safety and public health, just as they are allowed to do with other industries.

We will continue to stand with the communities that are being dramatically impacted by oil and gas drilling. Their concerns have not gone away with today’s rulings.

These decisions also show that the oil and gas industry’s threats of litigation are a hammer that the industry has no qualms about wielding against local governments if they decide to engage in land use planning. In order to combat this hammer, local governments must be empowered with better tools to protect their citizens from heavy industrial drilling.

There’s no question this is a setback for the local communities who sought better control over land use within their boundaries, but the fact is it was not an unexpected ruling. Colorado’s split-estate management of surface and subsurface development rights, a holdover from a era when Colorado was a mineral extraction hinterland and not a burgeoning urban population center, is simply not written to balance the needs and rights of today’s urban populations vs. mineral rights owners.

These local communities who fought back for a better deal knew they were up against long odds under current law. As much as anything, these moves were intended to provoke a statewide discussion on how to better protect neighborhoods, businesses, and schools from a heavy industry with a unique right to run roughshod over local land use authority. The response from the industry, Republican politicians, and yes, many Democrats including pro-energy Gov. John Hickenlooper, has ranged from denial to outright contempt for the concerns of opponents of “fracking” in residential areas. Rather than working toward a solution that acknowledges the problem, supporters of the industry in both parties have brushed off concerns–often offensively–and hid behind the legal status quo.

After today’s ruling, the battle shifts back to the ballot box. We’ll have to wait until August to see what energy ballot measures we’ll be voting on this November, but bigger setbacks between energy development and surface populations and a constitutional statement clarifying local control rights are major possibilities. Energy industry surrogates prefer to steer this debate into extremes like a total ban on “fracking” statewide, from which they can make more effective counterarguments, but more realistic measures may well prove much more popular. If funders like Tom Steyer and Jared Polis decide that 2016 is the year to throw down, today’s ruling against Front Range cities could become the battle cry that changes everything.

Because it’s evident now that something has to change.

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33 thoughts on “Colorado Supreme Court Rules Against Cities on Fracking”

  1. That change has, of course, been needed for a very long time. But nothing will ever really change until the first floor of the state capitol building is taken away from the O&G lobby. One man stands in the way of actually accomplishing anything that would alter the status quo in any meaningful way…that man is John Hickenlooper.

    Yes…he has many dedicated accomplices to help with his obstructionism. But if Gov. Frackenlooper could/would see the truth….well, he wouldn't be Gov. Frackenlooper, would he?

  2. Destroying rural Colorado's economy to put up tract homes and strip malls. Colorado Pols supports the Californication of Colorado, plain and simple. Stop Tom Steyer's power grab!

    1. Tell the people of Paonia and surrounding towns how great the boom and bust cycles of any fossil fuel business are for maintaining a thriving economy long term. Nobody in the upper echelons of oil, gas or coal gives a damn about the people who work for them, are used up by them and left hanging out to dry when it's over or the price goes too low.

      These are, by nature, rapacious enterprises that extract all they can from both land and people, then move on to the next hot spot with never a look back at the devastation they leave behind. It's their business model. 

      These are people who had to have their arms twisted for decades to allow the most modest safety measures to protect their workers in the mines and oil and gas fields or make any effort at reclamation because they could always get more to replace those injured and killed and they didn't deem their workers' lives or the natural treasures they trashed or the streams they poisoned to be worth the loss of a penny of profit. Now that they’ve been forced to, at least to some degree, to hear their spokespersons tell it they’ve always been models of concern and responsibility out of the goodness of their hearts. Bull.

      These are the last people to lose any sleep over the state of rural America or working rural Americans.

      Spare us your faux concern.

      1. Damn I need a recommend button again.

        Growing up in Pennsylvania, I've seen what the coal industry does when it's done with a site. It leaves the whole thing, town and all, to rot and ruin. How many old oil wells sit out on their pads around the country, never capped or disassembled, the old iron mule idle forever more? They're the ultimate downside of corporations incorporating to protect themselves from their own profitable projects: the old privatize profits, socialize losses scheme we've had foisted on us since, well, forever. Once they're done, they're gone; declare the project bankrupt and walk away…

        We're on the cusp of something much better, but we've got a lot of people who've made their lives on an outgoing technology and an industry that never fully paid for what it earned.

      1. And,of course, you are the sole authorized voice of rural Colorado.   What do I tell all those farmers in Phillips County who are happily cashing their oil and gas royalty checks?  They have a nasty habit of thinking of themselves as citizens too, albeit citizens who stop off at the FSA to get their crop subsidy checks before going to the farm Bureau meeting in time to cheer the denunciation of big government.

        1. If you see where I suggest anywhere that I am the sole authorized voice of rural Colorado feel free to link it.  I am speaking for folks I work with daily. 

          You sure do love slaying those straw men V. 

          1. Oh, I see.   You were only blowing an opinion out of your ass when you  used used the "royal we" and the royal "us"  to assail them villainous "city shills."   Good to know.

              1. My God!  You found the source of Donald Trump's campaign!  That's the greatest discovery since Teddy Roosevelt traveled the River of Doubt!

            2. You are barking up the wrong tree, V. The fact is, Mr. Kolbenschlag has, does, and most likely will continue to speak for thousands of Westernslopers when it comes to our attitude about front range city people and the industry they bring with them. His experience is considerable and his opinion broadly respected in these parts, particularly as it pertains to resource management from an environmentally thoughtful and sustainable point of view.

              Many on the front range consider anything west of Glenwood Springs to be a third world, except for our coal, and gas, and peaches, and wine…and snow (resources all, don't ya know). I worked as a volunteer at KPRN radio when it was taken over by CPR in an unannounced, out of town deal. 115 displaced volunteers and a boatload of listeners and contributors let them hear about it. If you had been at the auditorium that night, you would not question the mild invective of my friend PK.

              Thanks for reading,V . 

              1. Thanks Duke, hit the wrong reply, this is back at V, and CHB:

                I did not mean to speak with the 'royal we,' and nor did I suggest that "we" however defined want to ban fracking.

                Indeed, I would suggest that the non monolithic nature of 'rural' Colorado puts lie to the Chicken Little claim by industry that local control would end fracking. It certainly would not here in Delta County nor Mesa, nor Moffat nor even I suspect Philips and Weld. 

                I do not think that city folk in general are any less capable of having a thoughtful opinion or are categorically shills. I think Moddy is a shill, I think he is  a city-based shill, and I think that many of the farmers, ranchers and other rural folk I work with on a daily basis would find his talking-point based nonsense tiresome.  

                So, I will grant that the "we" and "us" may have sounded more sweeping than my intent, but will reassert that the leap you make to something about cashing royalty checks cannot be found in the statement I posted. Therein is the 'straw man' argument, a tactic–fallacious at that–you seem to have a propensity to deploy in these parts. 

                As for CB and local control there is, of course, a substantive difference between federal and non-federal lands, specifically that the latter generally are managed by local jurisdictions–other than this singular industrial activity. 

                1. The royalty check reference, PK, is to my Phillips County neighbors, who eagerly cash theirs and who would regard any effort to restrict  the oil and gas industry as grounds to oil up their ever present gun collections and go liberal hunting.  They are primarilty a right-wing lot, though they manage to cash their crop subsidies without stopping their denunciation of "welfare"  I actually saw a town meeting Cory Gardner held in which he explained that the majority of the money in the farm bill was for stuff like SNAP…at which point one old boy interrupted tp shout in disgust "WELFARE!" The crowd cheered.  The truth, of course is that the farm bill is 100 percent welfare, with the least defensible handouts going to hypocrites like him.  But in Eastern Colorado, we understand that it ain't welfare if the money goes to rich white boys.

                  I don't doubt what Duke said about you representing a lot of opinion on the Western Slope.   But Eastern Colorado is also rural Colorado, enen if God intended us to be part of Kansas.  Our farm is just 7. Miles from Nebraska.  In a lot of ways, Eastern Colorado is like Western n Colorado, namely in our devout belief that we are screwed over by the dominant front range block.  But these days, you are politically more diverse.  Hell, even Scott Tipton is smarter than Ken Buck.  For that matter, my paraeet is smarter than Ken Buck, and my parakeet is dead.

                  When it comes to oil and gas, thats almost a religion in our parts, which include the eight counties that voted to succeed and form a separate Dumphuckistan.  In fairness, oil and gas development doesn't do nearly as much damage on the high plains as it can in the mountains.  I like to say Eastern Colorado is God's country, but only because the devil had the right of first refusal.  But for whatever reason, the high plains can get into your blood as much or more than those mountains most people think are the only Colorado.  In truth, you could fit the state of Indiana in eastern Colorado without ever touching a mountain.  

                  My family has been there since 1887, but I'll be the last.  We do have some visionaries like Michael Bowman, but the majority of our folks seem more worried about gays marrying than transitioning to a sustainable economy.   Sorry to run on so long but just remember while the Western Slope is a vital part of rural Colorado, we plains are too, rugged individualists who will fight to the end for our subsidy checks and damn any lyin librul who thinks we is hypocrites.   Sigh.

                  Pax Vobiscum

              2. Sorry if I was grumpier than usual, Duke.  I mainly snapped at pk for stating the viewpoint of "rural Colorado" rather than "Western Colorado."  We high plainsmen are just as rural, if not more so, but much less diverse on the energy issue.  We drink fracking fluid here as health food.  You west slopers at least have a leavening of environmentalists and sportsmen,.  I sort of apologized to PK by implication in my essay on Eastern Colorado.  Let me do it here explicitly.  You are a good man,, PK, and I particularly like your work on local food, etc. (as long as folks understand, as you do, that distances here in the west mean we have to truck our melons and peaches a bit further than folks in connecticutt.

                Anyway, I had some bad family news today and chose to bite you rather than treat you with the respect you deserve.  I apologize for that.  But I still love yout fart site!

                1. Its all good. I know better than to get pissed off at jerks like Moddy anyhow. And I did mean West Slope, and certainly not everyone here. So I could have been a little more specific. I let the little troll yank my chain. My bad. Sorry about your news. Take care V.  

        2. V – if we're arguing about local control (and not who is the voice), I doubt the majority of Phillips or Yuma County residents would opt-in to a fracking ban. Ever.  On the Front Range you have a completely different set of dynamics.  The high-tech sector is on fire; the kind of environment Boulder and Larimer County want to cultivate in their backyard is much different than the 'pigs, prisons, dairies and natural gas' economies we've created in our backyards. Those communities want a voice in those decisions.  If nothing else, the concentration of people warrants prudence given the air and water quality issues associated with the operations today. 

          I read somewhere the hi-tech sector creates 2x more jobs per $/state GDP than the natural gas industry.  The former has more certainty with substantially less environmental impact, the latter (as Duke and Pete now all-too-well) can vanish (literally) overnight.  Tourism, wine, skiing, etc. will, in the long-term, far surpass the economic contributions to the state by O&G and will last long after the oily boys have extracted their last mcf.

          Absent a state framework that protects the communities, the locals should have a voice. 

           

           

          1. Michael, see my essay above to pk.  In Phillips and Yuma, we not only won't ban fracking, we will probably make it mandatory, even if there is no gas present, because why take the chance that some environmentalist will like us?

            1. Thanks V – and my thoughts are with you re: your family. I may have told you, but my paternal great-great grandfather homesteaded south of Paoni in 1886. It was the next generation that moved south to Yuma County, settling in the canyons south of Laird. 

  3. One should be careful what one wishes for, with all the talk about how important local control is for land use decisions re energy development. It's not a big stretch to then hear the wrong people start saying that local control over public lands should also happen. Can't be for one form of local control and oppose another form without losing credibility. 

    1. A solid point,CHB.  I remember covering the land use wars in the 70s, when Dick Lamm, Mike Strang and Betty Anne Dittemore were fighting for what became HB 1041.   The developers kept cutting off any state input by arguing for city and county suzerainty.  I remember idly speculating one day what might happen if Maggie Markey, then lobbying for growth restrictions for the League of Women Voters, ever ran for Boulder County Commissioner.  In just a few years, she did just that and was elected.  Local government is a two edged sword .  We would't allow Swink to decide whether to allow LGBT rights and I really think there are issues, fracking among them, where a coherent state policy is called for.

  4. When something is omnipresent, it becomes invisible. Rural "Kids these days" (at least the NE CO kids I teach) see the tan fracking tanks everywhere they drive or live or farm, but they don't see them. Their families' prosperity depends on the mineral rights checks, and on the subsidies flowing into bank accounts, but their innocence has been preserved.  Recently, I mentioned "fracking" as a controversial topic, and I got blank looks.  "What's fracking?," they asked. On a cruise down 76 to the Walmart in Fort Morgan, one can easily pass 50 fracking tanks and rigs. Drive further west and then north to Greeley, and the number goes into the hundreds. I do my best to provide neutral, factual information, but the knowledge gap and willful ignorance is mind-blowing. V wrote:

    When it comes to oil and gas, that's almost a religion in our parts, which include the eight counties that voted to succeed and form a separate Dumphuckistan.  In fairness, oil and gas development doesn't do nearly as much damage on the high plains as it can in the mountains.

    You can't have a religion without knowing what you worship. The damage on the high plains is considerable: tank fires,  methane emissions, oil trains on decaying railroads, oil worker fatalities and injuries, contaminated water. But the information isn't getting to the next generation's decision-makers- either on the causes or the effects of O&G development. I'm not going to put links up for all of those causes or effects – it's late, and you either know or you are also willfully ignorant.

    My point is that our Governor and legislature are also keeping this ignorance in place,even while they deliberately propagandize faulty pro-industry information. Yet, their control over information is slipping, even while control over policy is tightening. A recent Greeley Tribune poll showed 67% did not believe that a planned multiple tank development in the center of town should be allowed; yet the City Council allowed it.

    The information war, at least, is one we can win. If the next generation will make any different policy choices, it's imperative that we win it. I think we've found our next debate topic.

  5. Great comments, everyone. Well, almost everyone. It really is about land use balance – balancing the needs/wants of industry with the needs/wants of surface owners who have invested a substantial portion of their resources in their home planted on the surface. If we don't find a way to balance those needs, the problems – and political turmoil – will not go away.

    How do we achieve balance, without substantial changes to Colorado's split estate approach to surface and mineral rights? Most likely through reasonable land use planning powers at the local level. I've been around long enough to remember Gov Lamm's suggested human settlement policies decades ago, in which he proposed land use planning to be exercised at the state level. Didn't go over well, to put it mildly. Now we have an army of well-oiled (well-gassed?) folks who want to gently convince us that local land use planning just isn't all that it's cracked up to be, is so "yesterday," and we should just turn it over to big brother (brother Frackenlooper and/or brother oil and gas – interchangeable, I guess).

    What is local land use planning? I've served on planning commissions for a number of years. It's mostly making planning and zoning decisions to separate incompatible land uses. We don't approve a pig farm in the middle of town. We might mix commercial and residential, but we don't mix industrial and residential. In the world of industrial oil and gas operations, for health reasons and peace of mind the noise and smells need to be reasonably separated from residential areas, plus schools, nursing homes, hospitals, etc. We're not living in the 19th or 20th centuries any more. Let's modernize the extraction industries.

    1. Just one quick note, because I've seen others doing it here.  This isn't a problem of the split estate, well it is, but not only that.  It's a problem of imbalance between the property rights of those who live on the land and those who wish to exploit its resources.

      I happen to be in what seems to be the one subdivision in Colorado where the developer didn't sever the rights.  So I own both the surface and subsurface rights.  I also live 500 feet from one well site, just recently completed; about 1500 feet from another, which is close to or just recently has been completed; and a some intermediate distance between those from a third, in which I have a fractional interest (only about $10 in royalties so far– tracking it to make an offsetting donation to some worthwhile environmental cause).

      Now, I bought my home just before the drilling started, and with full knowledge that it would, because, well, that's what you do if you decide to live in Weld County.  But that doesn't mean it should have, bordered by homes along two sides.  Or that the well across the street should have started drilling before it was permitted to and done almost no sound mitigation (I hear that one clanking away, when out in my backyard),

      The enforcers, while well-intentioned, really manage to do little or nothing.  When I filed a complaint about powerful odors (my only one, I'm not gonna make their lives miserable), they referred me to CDPHE for any health concerns, and checked that equipment was working "as intended."   Still had odors nightly for another week.  Then again, it's an industrial use, with industrial consequences.  You can't regulate all that away, you can only site it in locations for which it's appropriate.  And that's the problem– not the split estate, but a failure to give any credence to proper land use.

      Nobody pushing the frack wherever and whenever line would be fine with an auto body shop or a gravel operation or a trucking depot dropping in a few hundred feet from where they live.

      1. Agree, a "failure to give any credence to proper land use." The split estate issue is, I believe, that some seem to think that mineral holders have more rights than surface holders, that mineral owners get to do whatever industrial activity they want, regardless of how it impacts those trying to live on the surface. Balance and fairness, balance and fairness.

        1. Agreed on all accounts; there's good reason we aren't permitting pig projects in Boulder and Larimer County, and why Haxtun won't be the next high-tech mecca.  

          1. What I don't understand, is that if I make use of a portion of my neighbor's unused surface ownership for some period of time, I can make a claim of ownership of that property as my own under adverse possession, and that will be upheld by the courts. 

            So, why can't I dig a few subsurface holes in my property (install a sprinkler system, dig up a few rocks, whatever) and claim an adverse possession for those subsurface rights after some period of time that those mineral rights have gone unused?

            Surface rights don't go on in perpetuity if someone else makes an adverse claim, why are subsurface rights perpetual?

            1. Adverse possession requires hostile (not permitted by the owner) use of property that is open, continuous, and exclusive.  To make that claim with mineral rights, you'd have to have your own wells extracting (that's the use courts would acknowledge) for the 18 year period.

              1. I've been digging all sorts of holes in my property for nearly 30 years now — even drilled down 25 feet for some foundation piers, never got the mineral owner's  permission, haven't hid that fact at all — my neighbor's can all attest, no one else has ever done any digging, and I've extracted more soil than I care to remember …

                … so, where do I apply for my mineral rights?

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