Nicolais: State RFRA bill dies a faster, quieter death

Mario Nicolais

The twin fracking opinions handed down by the Colorado Supreme Court this month illustrate the distorted lens through which most court opinions are reported and received by the public.

Justice Richard Gabriel, the newest member of the high court and one generally considered to fall on the liberal side of the judicial spectrum, issued the opinions. In just the second paragraph of the Longmont decision, Justice Gabriel made it clear that, while both sides held sincere beliefs over the “vices and virtues” of fracking, the case turned on a “far narrower, albeit no less significant, legal question.”

In the wake of the decisions, reports typically skimmed over the preemption jurisprudence that provided the foundation of the opinion and focused more time and energy on the winners (fracking proponents), the losers (fracking opponents), and who may have been harmed (the voters of both cities). These players represent the sexier sells-more-copy angles of the story. Pitting bitter rivals against one another fits nicely within a 140-character tweet. That, in turn, attracts the attention of both sides.

And it misses the broader, more complex legal underpinnings.

That’s a shame, because the opinions penned by Justice Gabriel are a wonderful study in judicial constraint, application and clarification of governing law. Justice Gabriel’s step-by-step analyses in the opinions provide a window into how courts should operate.

After quickly dispensing the background hoopla regarding policy concerns, Justice Gabriel dug directly into the substantive matter of preemption. Recognizing deficiencies in prior case law that led to confusion, Justice Gabriel provides a concise and concrete framework for review. Specifically, he noted that the “question of whether a matter is one of statewide, local, or mixed state and local concern is separate and distinct from the question of whether a conflict between state and local law exists.” He then set forth the standards to be applied, how to assess the interplay between regulatory schemes, and declared that most instances provide a question of facial evaluation of the regulations, not factual inquiry into the effects.

In one paragraph, Justice Gabriel laid out the approach for preemption review in any other circumstance that may present itself, not just the limited scope of fracking rights.

The application of such a framework becomes near mechanical. As any good legal rule should be.

Because the bans affected interests that extended beyond the city lines, the question became one of mixed state and local concern. The interplay consequently leads to further analysis of the type of preemption: express, implicit or operational. In the end, an operational conflict between the state and the local government — i.e. “by prohibiting fracking and the storage and disposal of fracking waste, Article XVI materially impedes the effectuation of the state’s interest.” To allow the local ban to do so would render the state regulations meaningless and superfluous.

Finally, Justice Gabriel addressed the challenge of Longmont intervenors asserting an inalienable right to be protected against preemption. Finding that the rationale relied upon by the intervenors would apply too broadly — effectively meaning local regulations would always supersede state law.

I don’t know Justice Gabriel and have only appeared before him once that I remember. However, by reputation, he is among the more “liberal” justices. If I had to guess, I believe he probably personally opposes fracking. But you cannot find a trace of that preference in these opinions. That is exactly what we should always seek from our judiciary: an impartial and straightforward legal analysis. As Justice Antonin Scalia said, “The judge who always likes the results he reaches is a bad judge.”

Justice Gabriel should be applauded for these decisions because of the straightforward, disciplined nature inherent in both.

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