A Colorado environmental group filed a motion in Boulder County District Court on Wednesday to re-open a decision regarding a ban on fracking approved by Longmont voters in 2012.
The motion was filed Aug. 14 by Colorado Rising, the main group behind last November's failed ballot measure that sought to greatly increase the distance between new oil and gas operations and buildings.
In 2012, Voters in Longmont, by a margin of 60% to 40%, approved a change to Longmont's charter to ban fracking within city limits. Longmont, like many Colorado municipalities, is a "home-rule" city that allows voters to change the city's regulations.
A month after the vote, the Colorado Oil and Gas Association (COGA) and Top Operating, an oil and gas company, sued to prevent the ban from going into place. In 2013, the Colorado Oil and Gas Conservation Commission (COGCC) also joined as a plaintiff at COGA's request.
The Boulder County District Court ruled in favor of the plaintiffs in 2014. The defendants — which then included the Sierra Club; Earthworks; the city of Longmont; Food & Water Watch; and Our Health, Our Future, Our Longmont — appealed that decision to the state's highest court.
In May 2016, the Colorado Supreme Court upheld that ruling, stating that the ban was preempted by existing state law — the Colorado Oil and Gas Conservation Act — and that the ban and was "invalid and unenforceable."
At the time of the lawsuit, the COGCC's primary mission was to foster oil and gas development. But under Senate Bill 181, which passed in this year's legislative session and was signed into law by Gov. Jared Polis, the commission's priority was changed to protection of health and safety.
A second provision in the new law allows local governments to impose stricter regulatory authority over oil and gas development within their borders.
That led to Wednesday's filing to overturn the prior decision. The motion points out that "if the legislature intended to prohibit local governments from banning oil and gas operations within their jurisdictions, it would have clearly said so."
The motion filed Wednesday by Colorado Rising pointed out that the Boulder County District Court, in its ruling, said it "recognizes that some of the case law described above may have been developed at a time when public policy strongly favored the development of mineral resources.
"Longmont and the environmental groups, the Defendant-Intervenors, are essentially asking this court to establish a public policy that favors protection from health, safety and environmental risks over the development of mineral resources," it said.
In a statement, Colorado Rising said that SB 181 is a "sea change in regulating oil and gas operations in the state. This sea change reinforced local government land use authority, provided local governments greater control over oil and gas operations, and eliminated preemption of state interest from the act, among other things, making Longmont’s charter no longer in operational conflict."
"In light of the new law, Our Longmont will ask the Boulder County District Court to lift the injunction and allow the city of Longmont to enforce its voter-approved charter amendment."
Longmont resident Michael Bellmont said that "voters overwhelmingly approved a ban in 2012 that the Supreme Court later said was trumped by state law. The law has changed, and now the charter amendment needs to be enforced to protect the health, safety and welfare of our residents. We deserve public health and safety ... we voted for it ... and we deserve our voices to be heard and honored.”
Attorney and former state Rep. Joe Salazar, executive director of Colorado Rising, added that SB 19-181 "in no way stops local governments from enacting a ban on fracking. Considering the climate crisis and Longmont’s already failing air quality largely due to oil and gas extraction in Weld County, a ban is reasonable and necessary to protect the health and safety of Longmont residents.
"SB 19-181 granted local control to Colorado communities, and Longmont has the right to exercise its self-governance through implementation of their charter amendment.”
According to Detlev Helmig, an associate research professor at the Institute of Alpine and Arctic Research (INSTAAR) at the University of Colorado-Boulder, measurements show that "concentrations of oil and gas-related pollutants in east Longmont were at a minimum, on average, [of] two to three times higher than in most other large U.S. cities.
"Longmont's oil and gas-related pollution exceeded the levels seen in all of the 28 major urban comparison areas. Based on the known wind patterns, these pollutants are presumably coming into Longmont from the active oil and gas drilling and fracking in Weld County."
At last month's SB 181 rulemaking hearing by the state's Air Pollution Control Division, several Boulder County residents said that wind blows emissions from oil and gas facilities from Weld County and into Boulder County, and asked the agency to require reductions in emissions from Weld County oil and gas operations.
In 2012, then-Gov. John Hickenlooper reportedly told a gathering of oil and gas executives that the state would not sue Longmont over the fracking ban, leaving that up to the oil and gas companies. But the COGCC was later asked by COGA to become a plaintiff and did so. The Denver Business Journal reported at that time that the industry had spent in excess of $500,000 to defeat the initiative.
In a statement, COGCC's Jeff Robbins said “SB 181 gives local governments a voice and the opportunity to make decisions on what’s best for their communities while putting health and safety first.
"This bill does not have the intent to ban oil and gas development. The COGCC is and will continue to work with all parties involved — especially during the rulemaking process."
Dan Haley, president and CEO of the Colorado Oil and Gas Association, in a statement Wednesday, said that "banning responsible energy development in Colorado is illegal. Taking someone’s property is illegal. The courts have said so. Our elected leaders have said so. We agree with SB 181 sponsors House Speaker KC Becker and Senate Majority Leader Steve Fenberg and Governor Jared Polis, who have all said repeatedly that the legislation does not allow for a ban on oil and gas development. This is political theater, plain and simple."
We trust the state of Colorado will also vigorously defend against this political ploy.”
Haley, noting the ongoing rulemaking efforts of the COGCC, added that "there is a rational path forward that allows for protecting Colorado’s environment, protecting Colorado communities, and protecting the hard working men and women who make it possible and produce the energy that every single one of us relies on each day. We choose to walk that path.”