Colorado Oil & Gas Association Confident Supreme Court Will Rule in Favor of Current Law, Confirming Illegality of Local Oil and Gas Bans

For Immediate Release
Doug Flanders
Rachel George

DENVER (December 9, 2015) – Today, the Colorado Supreme Court heard two appeals challenging the legality of Longmont's ban and Fort Collins' five-year moratorium on hydraulic fracturing. 
Dan Haley, President and CEO of the Colorado Oil & Gas Association (COGA), said “Our attorneys made a strong case based on long-standing legal precedence, and we are confident that the Supreme Court will agree that the ban implemented in Longmont and the Fort Collins' moratorium are illegal and preempted by current law.  We are confident that the Supreme Court will provide further clarity regarding the primacy of the state in oil and gas regulation.”
The first case, which was heard at 9 a.m., was the City of Longmont v. Colorado Oil and Gas Association (COGA) and the Colorado Oil and Gas Conservation Commission (COGCC). The case involved a challenge to the Longmont ban on the use of hydraulic fracturing within its borders as well as the storage of hydraulic fracturing waste. The appeal is from Judge Dolores Mallard’s decision in Boulder County court that Longmont’s ban was operationally preempted by state law because it conflicted with state law.
The second case, heard at 10 a.m., was the City of Fort Collins v. COGA. In this case, COGA challenged the validity of Fort Collins’ five-year moratorium on hydraulic fracturing and the storage of hydraulic fracturing waste within Fort Collins. Judge Gregory M. Lammons in the Larimer County District Court held that Fort Collins’ moratorium was operationally preempted because it conflicted with state law. He also held the city’s five-year ban was impliedly preempted by the 1992 Supreme Court decision in Voss v. Lundvall Brothers. 
Haley believes that the court will rule in COGA’s favor and added “While oil and gas was the catalyst for the action, these cases are much more than just about oil and gas.  These two cases truly get to the heart of where the state’s authority ends and local government’s begins. Depending on the outcome, the decisions could have tremendous impact across all businesses in Colorado and how and if they can operate in our communities if certain people just decide they don’t like someone’s business.”
The main issues in these cases are the extent to which home rule governments can ban an activity extensively regulated by the state. While local governments can regulate certain aspects of land uses pertaining to hydraulic fracturing operations, COGA argued today to the Supreme Court that they may not ban the activity altogether.
Specifically, COGA argued that allowing local governments to enact such bans would contradict the broad language in the Oil and Gas Conservation Act giving the State authority to foster the responsible, balanced development and production of oil and gas in a manner consistent with protection of public health and protective of the environment. 
COGA also argued that the bans undermine the extensive regulations of the COGCC, which regulates virtually every aspect of hydraulic fracturing in over two hundred pages of regulations. COGA argued that under well-established Colorado precedent, local governments may not ignore the plain language of the Oil and Gas Conservation Act or the COGCC’s extensive regulation by banning completely the use of hydraulic fracturing within their border.   
Finally, COGA argued that under the 2009 Colorado Supreme Court decision in Colorado Mining Association v. Summit County, Fort Collins and Longmont are impliedly preempted from attempting to ban the use of hydraulic fracturing because of the State’s strong interest in the regulation of oil and gas
Haley concludes said that none of this changes what the industry must continue to do, “These cases - and the ultimate outcome -- have not, and will not, change our commitment to Colorado and its communities. We will continue to do the difficult and important work of finding reasonable and workable solutions with our friends and neighbors throughout the state so we can responsibly develop our natural resources.
“The oil and gas industry is too critical to the well-being of our state, economically, and to our future, to do anything less. This industry will continue to provide an affordable and reliable domestic supply of energy for everyone - including those who oppose the industry and its employees and families”
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