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Colorado Drilling Bans Could be Headed to Courts

As oil and gas drilling continues its march into more populated areas, there’s growing pressure on Colorado lawmakers to wade into a thorny battle escalating between the state and many local governments. Several bills that would give cities and counties more authority to regulate the controversial process of hydraulic fracturing are likely to be debated this session, even though it’s long been viewed as the state’s regulatory jurisdiction. KUNC’s Kirk Siegler reports on a series of tangled court rulings that got us to this point.

A Balancing Act

Oil and gas drilling has gotten deeply personal for state Representative Matt Jones (D-Louisville). 

“My parents live in Greeley and they’ve just been drilled under directionally,” Jones said in his office at the state capitol. “I think it points out how this is affecting people very directly in their homes, and why this issue’s getting more prominence now.”

Especially as more and more companies move in and stake out claims across Weld County, looking for their piece of the vast, oil rich Niobrara shale formation.

“I think it’s good we have the jobs, I think it’s good we have the domestic energy source, we just need to do this responsibly,” Jones said. “We have to give local governments a meaningful voice in this process.”

Much of Jones’s district that stretches from Louisville to Longmont sits atop the Niobrara, and many local governments there have been mulling tougher drilling regulations.

So the Democrat is drafting a bill to clarify that cities and counties can indeed do this, even though it’s long been viewed as the state’s authority.

‘Operational Conflict’

Jones mentioned Greeley, where he grew up.  Interestingly enough it was that city that tried to ban all drilling within its boundaries in 1985.  A Colorado Supreme Court ruling seven years later overturned the ban.

That’s provided the biggest legal ammo for opponents of local efforts to regulate fracking.   

“This is fairly well established law, some of it arises out of Weld County, so it should come as surprise to no one, even though it may come as disappointment to many,” said Colorado Attorney General John Suthers.

The Republican’s office recently sent a half a dozen or so letters impacted local governments warning them against adopting tougher regulations. He said the courts have consistently ruled that a local regulation can’t be in “operational conflict” with a state oil and gas law.  Case in point, Greeley’s all-out ban would have impeded, or conflicted with the state’s right to develop oil and gas, according to Suthers. 

Another bill being floated this legislative session seeks to clarify this provision, though Suthers isn’t sure that’s even necessary.

“It’s not very murky,” he said. “If the state thinks it’s something that is part of the oil and gas regulations, then the local governments aren’t going to be able, under existing law, to do something different.”

As attorney general, Suthers is the chief legal counsel to the state’s oil and gas conservation commission, which along with Governor John Hickenlooper, has thus far fought local efforts to regulate fracking.

“We intend to work with counties and municipalities to make sure we have appropriate regulation on oil and gas development, but recognize that the state can’t have 64 or even more sets of rules,” Hickenlooper said during his State of the State speech this month.

Dissenting Views

But Michael Saul, staff attorney with the National Wildlife Federation in Boulder, doesn’t buy this argument.

“The oil and gas commission has argued this for 20 years now,” he said. “And in most cases when the local regulation is short of an outright ban, the counties and towns have won.”

One of the most cited rulings Saul is referring to also stems from the early 1990s.  That was a state Supreme Court ruling in favor of La Plata County, which tightened drilling regulations using its existing local zoning laws.  The court ruled that was okay so long as the rules don’t conflict with the states. 

“My personal view is that the law is pretty clear and well established here,” Saul said.

That may be why some local governments new to fracking have moved ahead with temporary bans on it, while they modernize their regulations.

“In some sense, they’re testing the waters,” said Kathryn Mutz, a research associate at the University of Colorado’s Natural Resources Law Center.

Mutz believes the local bans are exposing some gray areas within state law.

“So I think they’re testing to see what is going to be considered valid, and it’s eventually going to go into the courts,” she said.

At least for now though, lawmakers like Representative Matt Jones are focusing their fight on the state house. 

The language on his planned bill has yet to be finalized, but Jones expects it will focus on set-backs.  Right now in an urban area under state law, there’s only a 350 foot required buffer between rigs and homes and schools.   

“For medical marijuana, it’s a thousand feet,” Jones said. “If it’s good enough for medical marijuana to be a thousand feet from a school, it’s good enough for an oil and gas operation to be a thousand feet.”    

Most of the fracking-related bills - Jones’s included – are expected to be debated early next month.

Kirk Siegler reports for NPR, based out of NPR West in California.
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