City of Fort Collins Evaluates Colorado Supreme Court Decision
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The City Attorney’s office on Friday 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 May 2, 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 May 2.
Read the decision at www.fcgov.com/oilandgas.