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3-0: Judge Strikes Lafayette's Voter-Approved Fracking Ban

Stephanie Paige Ogburn
Fracking pump trucks during a fracturing operation at a well pad site near Longmont, Colo.

A Boulder district court judge struck down a 2013 voter-approved fracking ban in Lafayette. The move follows similar court rulings against Longmont and Fort Collins, where voters passed bans or moratoriums restricting hydraulic fracturing.

The lawsuit was initiated by the Colorado Oil and Gas Association, which argued that a ban on fracking was effectively a ban on oil and gas development.

As in the past decisions, the court once again cited the 1992 Voss v. Lundvall Bros., Inc. case. In addressing operation conflict between the state's interest and the city the judge writes:

Just as the drilling ban in Voss substantially impeded “the interest of the state in fostering the efficient development and production of oil and gas resources in a manner that prevents waste” and protects the correlative rights of owners, Voss, 830 P.2d at 1068, Lafayette’s drilling ban has the same effect. Lafayette’s ban on drilling prevents the efficient development and production of oil and gas resources.

In the decision's conclusion, "the Court finds the Charter Amendment banning drilling is invalid as preempted by the Colorado Oil and Gas Conservation Act."

The results were not a huge surprise to legal experts like Bruce Kramer, Thomson Visiting Professor of Law at the University of Colorado Law School. He said the historical precedent of the 1992 Supreme Court ruling overturning a Greeley oil and gas ban, Voss v. Lundvall Bros., Inc., looms large in the recent court decisions related to fracking bans.

“District court judges rarely try to exercise independent powers when you have a clear statement by the Colorado Supreme Court on a closely analogous situation as you have in Voss,” said Kramer. “It would take some creative judicial writing to say, ‘Voss is different, I’m not going to follow it.’”

In its response, the Colorado Oil and Gas Association praised the decision, stressing the importance of local control measures—not bans—as a means for cities and towns to regulate development.

“The bans have been unnecessary, divisive and costly for taxpayers. Now that all three legal cases have been decided, we look forward to putting the ban debate behind us and focusing on meaningful solutions with our communities,” said COGA CEO and President Tisha Schuller in a press release.

While Lafayette and Fort Collins officials are staying mum on whether they’ll appeal lawsuit decisions, the fight will continue in Longmont. The city council recently voted unanimously to appeal Boulder County District Court Judge D.D. Mallard's July 24 decision. Several groups including Food & Water Watch have announced plans to appeal.

“We’re going to continue to push to give local communities the power to ban fracking without fear of a lawsuit from the governor or the oil and gas industry,” said Sam Schabacker, Western Region Director for Food & Water Watch.

Food & Water Watch — along with several citizen groups that passed fracking restrictions — were critical of Hickenlooper’s Aug. 4 compromise that took four potential fracking-related ballot measures off the table for the November election. That’s in contrast to groups like Conservation Colorado, which lauded the oil and gas compromise that will include an 18-person blue ribbon panel to make legislative recommendations.

Ultimately, Schabacker said he — and other groups promoting local bans — see the recent developments as minor setbacks in a much longer fight.

“This first phase of the fight was around the ballot campaigns, we were successful around those,” said Schabacker. “This next phase has been slightly interrupted because of the deal making that has gone on between upper level politicians.But the third phase is coming and we’re optimistic that we’ve got a good plan and we’re looking forward to rolling out some unique approaches.”

Schabacker won’t yet share details of what’s in store.

Editor's note: This article was updated to include a response from the Colorado Oil and Gas Association on the Lafayette decision.

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