A Broomfield, CO, district court has ruled that a ban on hydraulic fracturing (fracking) put in place by voters in November 2013 doesn’t apply to Denver-based producer Sovereign Operating Co. because it had a memorandum of understanding (MOU) with the city before the ban was imposed.
In ruling in favor of Sovereign against the city last Thursday, District Court Judge Christopher Melonakis indicated the city's ban was unconstitutional because it is an ex post facto law, outlawing previously legal actions retroactively.
"In the present case, it is absolutely undisputed that the charter amendment is intended to apply retrospectively," said Melonakis, referring to part of the Broomfield language regarding a drilling ban that said it was to apply "retroactively as of the date the measure was found to have qualified for placement on the ballot” in August 2013.
The judge ruled that the MOU between Sovereign and the city had been signed after the ban was certified for the local ballot, but "the parties clearly relied upon prior law regarding preemption and operational conflict in negotiating the MOU."
Further, the judge underscored that the city/county charter amendment violated two parts of the state constitution "beyond a reasonable doubt and cannot be enforced to affect provisions of the MOU..."
Continued legal maneuvers by other cities opposed to drilling have come despite a pause as a statewide task force considers solutions to the contentious debate (see Shale Daily, Sept. 29). The cities of Longmont and Fort Collins continue to seek appeals of similar state court summary judgments dismissing local fracking bans.
Two other district courts in the state have stricken similar local enactments, finding they were implied to be preempted by the state or that an operational conflict prohibited enforcement of the local law (see Shale Daily, Aug. 28).
"This is yet another victory for certainty and clarity in the way Colorado regulates oil and gas operations," said Colorado Oil and Gas Association President Tisha Schuller. "In just the last several months three previous rulings have found that fracking bans are on their face unlawful. Now another court has found that agreements between a city and a local operator prior to bans passing are binding."
Sovereign agreed to three continuances of its "use-by-special-review" permit process in Broomfield to allow the city to conduct public forum study sessions, get third-party expert advice and hold a town hall meeting to get public input before signing the MOU.
"We're pleased that the court said clearly that local agreements between an operator and a municipality can't be violated retroactively by fracking bans," said Sovereign CEO Tom Metzger.