Colorado Sues Boulder County For Fracking Time-Out

Feb 14, 2017

Boulder County is being sued by the state of Colorado over its continued moratorium on new oil and gas development. In a letter sent to Boulder County Commissioners Jan. 26, Colorado Attorney General Cynthia Coffman threatened legal action if the county didn’t begin permitting new oil and gas development including fracking, on unincorporated county land by Feb. 10. The deadline passed - without any permitting change from Boulder County - and a complaint, the initial legal document to begin a lawsuit, was received by county officials Feb. 14.

In her initial letter, Coffman asserts that Boulder County has not allowed new oil and gas development for five years — and that’s significant. In 2016, two state Supreme Court decisions made clear that local governments can’t prohibit oil and gas on a local level.

One of those decisions struck down a five-year moratorium by the city of Fort Collins. Coffman’s letter said that since it appears Boulder County’s may go on longer, it is “clearly unlawful.”

Boulder County deputy attorney David Hughes disagrees.

“Our position is that we are complying with state law and if attorney General Coffman just held off and let us complete our process, we think that is a perfectly viable option,” Hughes said.

"A lot of the open space that we bought over the years, the mineral rights had already been severed, so the open space doesn't provide protection in those instances."

After the state Supreme Court rulings, Boulder County rescinded its moratorium on new oil and gas permits that was set to expire in 2018. It was replaced by county commissioners with shorter time-outs, usually four to six months long. Most recently commissioners voted in December 2016 to extend it until at least May 1, 2017, while they revise the county's oil and gas regulations.

“In 2012 when the county adopted its regulations, it was looking at smaller well pads and now the trend is for these mega pads, we're looking at 20, 30 40 wells per pad,” Hughes said. “Our regulations didn’t really look at or address that issue.”

In a statement, Coffman asserts that Boulder County has had years to comply with state law:

The Boulder County Commissioners responded that they needed yet more time to draft regulations and prepare to accept new applications for oil or gas development.  Because five years is more than reasonable time to complete such a project, and because Boulder County continues to operate in clear violation of Colorado law, the Attorney General today is filing suit in Boulder County District Court to compel compliance.  It is not the job of industry to enforce Colorado law; that is the role of the Attorney General on behalf of the People of Colorado.  Regrettably, Boulder County’s open defiance of State law has made legal action the final recourse available to the State.  

A hearing on the proposed revisions to the county’s regulations is set for March 14. Hughes said that if the timeline goes forward as planned, the county could start accepting drilling permit applications May 1.

“We think we have a good plan in place and we plan to stick to it. And quite frankly, we’re not going to be bullied or threatened by the state to renege on our duty to safeguard our residents and our environment," said Boulder County Commissioner Elise Jones.

"It’s a sweetheart deal for the oil and gas industry," the Boulder County Commissioners wrote in a statement, "but a massive waste of Coloradans’ tax dollars for the State to sue us on industry’s behalf, and we are prepared to defend our right to safeguard the health, safety, and well-being of our constituents. " 

Ben Pearlman, Boulder County attorney said before they received Coffman’s letter in January, they were given the impression by the state’s regulatory arm, the Colorado Oil and Gas Conservation Commission that the state was not interested in pursuing a lawsuit against the county and would leave it up to oil and gas operators to take them to court if they wanted to drill.

As for industry officials, they applauded the suit. Dan Haley, President and CEO of the Colorado Oil and Gas Association, an industry group released a statement:

“It's not about drilling, or fracking, or pipelines, it's about the law. And the law is clear: Long-term moratoriums -- and this one is over five years now -- are illegal. Boulder County shouldn’t be surprised that the Attorney General cares about the rule of law in Colorado.”

The majority of the land that drillers could be interested in is open space, according to Pearlman. That’s because it sits on the Wattenberg Field, a geologic formation that has large oil and one of the largest natural gas deposits in the nation. Most of the Wattenberg Field is under Weld and Adams counties, but a portion of it is located on the eastern edge of Boulder County.

But an open space designation won’t protect it from possible drilling, according to Pearlman.

“A lot of the open space that we bought over the years, the mineral rights had already been severed, so the open space doesn’t provide protection in those instances. We do have more control if oil and gas is proposed on open space because we play the role as the surface owner, but it doesn’t necessarily mean it could be stopped,” Pearlman said. 

Editor's Note: This story was updated to include a statement from the Boulder County Commissioners issued after publication.