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Colorado appeals court refers fracking cases to state Supreme Court

admin publish 2015/8/19 14:18:18

The question of whether a local jurisdiction in Colorado can ban hydraulic fracturing will most likely be decided by the Colorado Supreme Court following a Monday decision by the Colorado Court of Appeals to refer two related cases to the high court. 

The two cases, Colorado Oil & Gas Association vs. City of Longmont and Colorado Oil & Gas Association vs. City of Fort Collins, involved challenges by the oil and gas industry and the state to local laws passed to restrict fracking and related operations within the boundaries of a city. 

In certifying the cases before the Supreme Court, the appeals court said they were matters of significant public interest and involved "legal principles of major significance." 

The Longmont case involves a change that voters approved to the city's charter in November to ban fracking within the city limits. COGA filed a complaint seeking a declaratory judgment that the resolution was not valid. COGA, the agency that regulates oil and gas operations in the state, was later added as a plaintiff. 

TOP Operating, which owns and operates oil and gas drilling operations in Colorado, intervened as a plaintiff in the case. Numerous other groups, including citizen and environment groups, joined as defendants. 

In July 2014, Judge D.D. Mallard granted a summary judgement in the case. The district court declared the resolution invalid and enjoined its enforcement, but stayed a final decision pending completion of the appeal. 

The Fort Collins case involves a citizen-initiated city ordinance, which placed a five-year moratorium on fracking and the storage of fracking waste within city limits. COGA sued the city and a district court ruled in COGA's favor on summary judgment. The district court declined to stay its ruling pending appeal of the case. 

Just as in the Longmont case, numerous groups, including county and local governments and umbrella government groups, trade association and environmental groups, joined the Fort Collins case on the side of the plaintiffs or defendants. 

In their decision to have the Supreme Court review the two cases, the appeals court judges cited a number of similar court cases involving local jurisdictions, mostly in the eastern part of the state, placing moratoria or outright bans on fracking. 

"There is pending litigation challenging all of these bans and moratoria. These cases are the most publicized disputes between the state, industry and anti-fracking advocates," the appeals court decision said. "They would appear to be the test cases for determining whether county and local governments may regulate or prohibit fracking and related activities."

The two cases "raise a number of important legal issues, which will likely require determination by the Colorado Supreme Court," COGA spokesman Doug Flanders said in a statement. 

"The Court of Appeals decision does not impact the district court decisions in any way. Moving the case to the Colorado Supreme Court in no way alters the fact that, to date, every Colorado court has declared bans and moratoria on hydraulic fracturing illegal," Flanders said. 

He noted that three district courts in Colorado had ruled that fracking bans implemented by the cities of Longmont and Lafayette and the Fort Collins moratorium "are pre-empted and rendered illegal." 

"We look forward to when these cases are closed and we can get back to how local control was meant -- not by banning products from your city but working together to find reasonable solutions," he said. 

Even a Supreme Court decision in the cases is not likely to resolve the ongoing controversy over the use of fracking in Colorado. 

Last fall several initiatives were proposed for the November ballot, both in support of fracking and calling for a statewide ban. 

Advocates withdrew those ballot initiatives after Governor John Hickenlooper promised to appoint a task force to examine fracking and other drilling-related issues throughout the state. 

The task force found that local governments should have some say in oil and gas development decisions, but stopped short of calling for municipalities to be able to prohibit fracking or other drilling practices.

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