Colorado Oil and Gas Association (COGA) V. City of Fort Collins
(last updated May 12, 2016)
The City Attorney’s office on Thursday issued a brief explanation of the impact of the Colorado Supreme Court’s decisions issued Monday rejecting Fort Collins’ five-year moratorium and Longmont’s ban on hydraulic fracturing.
The City has no further obligation under the moratorium in light of the Court’s action, meaning no City Council or other action is required. The City Attorney’s office is working with City staff to evaluate possible next steps for City action regarding oil and gas operations.
“There remains some room for the City to regulate oil and gas operations in the City, and we are reviewing the options for those regulations,” said City Attorney Carrie Daggett.
Key aspects of the Supreme Court’s decisions include:
- The Court held that City’s moratorium and Longmont’s ban are both preempted by the state’s laws regulating oil and gas operations, and upheld the District Courts’ previous invalidation of the moratorium and ban.
- The Court rejected, however, COGA’s argument that the moratorium and ban were “impliedly preempted” by state law.
- The Court instead ruled that the moratorium and ban are preempted by state law because they are in “operational conflict” with state law.
- This leaves open the future possibility for the home rule municipalities to regulate other aspects of oil and gas operations.
- The Court criticized the moratorium’s five-year duration as being too long and viewed it as changing, rather than preserving, the status quo, citing the widespread use of fracking techniques in oil and gas operations throughout Colorado.
- The Court also observed that moratoria can be appropriate land-use tools if used as “interim measures that are, by their very nature, of limited duration and are designed to maintain the status quo pending study and governmental decision making.”
Background on the case:
On Monday, the Colorado Supreme Court issued its decisions in two cases: City of Fort Collins v. Colorado Oil & Gas Association (“COGA”) and City of Longmont v. COGA. In both decisions the Court upheld a trial court decision striking down citizen-initiated ballot measures voters adopted to regulate hydraulic fracturing or fracking. Fort Collins’ measure was a citizen initiated ordinance, approved by the voters in November 2013, that established a five-year moratorium on fracking and the storage of its wastes within the City. Longmont’s measure amended its charter to permanently ban within Longmont all fracking and the storage of fracking wastes.
The Fort Collins case began when COGA sued the City in Larimer County District Court challenging the moratorium primarily on the basis that it was preempted by state law—specifically the Colorado Oil and Gas Conservation Act and related regulations. The City argued that the moratorium was within the City’s land use authority and was limited in time, and so was different from a ban.
In summer 2014, the District Court Judge ruled in COGA’s favor and decided that state law preempted the moratorium, and that it both “impliedly preempted” it and preempted it because the moratorium was in operational conflict with state law. That order invalidated the moratorium and the Judge denied the City’s request that the Judge leave the moratorium in effect while the City appealed his decision.
The City appealed the District Court decision to the Court of Appeals, which then took the unusual step of requesting that the case be transferred to the Supreme Court for final resolution and the Supreme Court agreed to hear the case. Oral argument was heard by the Supreme Court in early December 2015. The Supreme Court’s decision was issued Monday, May 2.
Read the decision at www.fcgov.com/oilandgas.
(Last updated May 2, 2016)
The Colorado Supreme Court Announced its decision in the Fort Collins Fracturing Moratorium case May 2, 2016.
Following is a statement from City Attorney Carrie Daggett:
“It is premature to comment until we have had a chance to review the Supreme Court’s decision carefully and fully evaluate how it affects the City. These issues are complex, and we’ll thoroughly examine the decisions relative to Fort Collins and Longmont. However, it is clear that the Supreme Court has found that the Fort Collins moratorium on hydraulic fracturing is in operational conflict with Colorado law and is therefore preempted.”
(Last Updated December 10, 2015)
On December 9, 2015, the Colorado Supreme Court heard the parties’ oral arguments in the City’s appeal of the Larimer County District Court’s August 7, 2014, decision striking down the City’s five-year moratorium on oil and gas hydraulic fracturing and the storage of its wastes within the City. This moratorium was imposed in November 2013 when the City’s voters approved a citizen-initiated ordinance imposing it. (The video of these oral arguments can be found below - the Fort Collins’ Oral Argument starts at 1:46).
Shortly after the ordinance was approved, the Colorado Oil and Gas Association (“COGA”) sued the City in Larimer County District Court challenging the ordinance on the basis that it was preempted by state law. On August 7, 2014, the District Court issued an order striking down the ordinance ruling that it was preempted by state law. The City appealed the District Court’s decision to the Colorado Court of Appeals.
On February 6, 2015, the City filed its Opening Brief with the Court of Appeals. Amicus curiae briefs ("friend of the court" briefs) were also filed with the Court in support of the City by the Colorado Municipal League, City of Boulder, Conservation Colorado, Citizens for a Healthy Fort Collins, Northwest Colorado Council of Governments (NWCCOG), Congressman Jared Polis, and Boulder County.
COGA filed its Answer Brief with the Court of Appeals on March 13, 2015. At about the same time, amicus curiae briefs were filed with the Court on behalf of COGA by the National Association of Royalty Owners, the American Petroleum Institute, Colorado Concern, Colorado Competitive Council, Denver Metro Chamber of Commerce, Colorado Motor Carriers Association, and the Colorado Farm Bureau.
On April 3, 2015, the City filed its Reply Brief. The City also filed a request asking the Court of Appeals to hear oral argument in this appeal. The Court of Appeals granted that request, and an oral argument hearing was set for September 1, 2015.
However, on August 17, 2015, the Court of Appeals issued an order vacating the oral argument hearing and filed a motion with the Colorado Supreme Court asking it to hear the City’s appeal now rather than after the Court of Appeals issues its decision. On September 21, 2015, the Colorado Supreme Court issued an order agreeing to hear the City’s appeal. The Colorado Supreme Court accepted all of the briefs that had been filed with the Court of Appeals and it did not ask for any additional briefs.
Now that the Supreme Court has heard the City’s and COGA’s oral arguments, the appeal is ready for the Supreme Court to decide. The Supreme Court has no deadline by which it must issue its decision, but the Court is likely to issue it within the next three to nine months.
All of the briefs and court orders that have been filed to date are posted on the City’s website.