In November, the citizens of Fort Collins, Colorado and Lafayette, Colorado voted to ban hydraulic fracturing from their cities. See prior blog, “Voters in three Colorado cities ban hydraulic fracturing.” In Fort Collins, a five-year ban on hydraulic fracturing was approved with 55% of the vote. Sixty percent (60%) of the voters in Lafayette approved an indefinite ban on all oil and gas development, including the deposit, storage, or transportation of fracking wastewater through “the land, air or waters” of the city. In both cities, the City Councils had opposed the bans.
On December 3, 2013, the Colorado Oil & Gas Association (COGA) filed a lawsuit against each city, challenging the validity of the bans (Fort Collins lawsuit and Lafayette lawsuit). COGA argues that a conflict exists between the bans and state law since the cities have no constitutional or statutory authority to implement regulations on oil and gas development techniques, such as hydraulic fracturing. COGA points to Colorado Supreme Court precedent and state law to support its stance that hydraulic fracturing cannot be blocked by municipalities.
According to COGA, the state’s General Assembly has declared it to be in the public’s interest for the state to “foster the responsible and balanced development, production, and utilization of the natural resources of oil and gas in Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.” The Oil and Gas Conservation Act created the Colorado Oil and Gas Conservation Commission (COGCC) to administer all “rules, regulations and orders with respect to operations for the production of oil and gas,” including “permitting, drilling production, plugging, spacing and chemical treatment of wells.”
Both COGA and COGCC are currently embroiled in lawsuits against the city of Longmont, which banned fracking in 2012. For more information on the Longmont lawsuits, see latest analysis of fracking-related litigation attached to this blog.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
