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Colorado Supreme Court Hears Arguments on Two Local Fracking Bans

The Colorado Supreme Court on Wednesday listened to arguments regarding two local bans on hydraulic fracturing (fracking) that were struck down by lower courts.

In separate appeals, the state high court heard the case of the city of Longmont's ban on the use of fracking and storage of its waste within the city boundaries and a five-year moratorium on those practices in Fort Collins. Both local actions were ruled by county district courts to be preempted because they conflicted with state law.

The Longmont appeal was opposed by the Colorado Oil and Gas Association (COGA) and the state Oil and Gas Conservation Commission (OGCC). COGA also weighed in on the Fort Collins case.

COGA CEO Dan Haley told local news media that he believes the court will eventually rule in the industry's favor. The court will not likely render a decision until some time in the first half of next year, a COGA spokesperson told NGI's Shale Daily.

Haley said the potential impact of the Supreme Court's decision goes beyond the oil/gas sector, focusing on "the heart of where the state's authority ends and local government's begins." The decisions' impact in the two cases, therefore, could be felt throughout the state's business community, he said.

COGA argued that allowing local bans and moratoriums would contradict the broad language in the state Oil and Gas Conservation Act and undermine the regulatory authority of the OGCC, which regulates all aspects of fracking. Further, the COGA attorneys cited a 2009 Colorado Supreme Court decision (Colorado Mining Association v. Summit County) as pointing to the state preemption of the actions by Fort Collins and Longmont.

"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," said Haley, who expects the court's decision to provide "further clarity" regarding the state's primacy in oil/gas regulation.

In September, the Colorado Supreme Court decided to take jurisdiction over the appeals of the local fracking restrictions enacted by Longmont and Fort Collins, following a request from the state appeals court (see Shale DailySept. 22). In August, the Colorado Court of Appeals referred the decisions directly to the Supreme Court without ruling, citing the public significance of these cases and raising a number of important legal issues (see Shale DailyAug. 19).

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