Court issues blow against fracking bans

A state district judge’s ruling could spell the end of hydraulic fracturing bans in Colorado.

On Thursday, Judge D.D. Mallard struck down Longmont’s ban on fracking, which voters approved in 2012. Mallard stayed her decision while the city considers an appeal. But if her ruling is upheld, it would apply to other communities with bans and moratoriums on fracking. 

The judge ruled that the state’s interest in developing oil and gas takes precedence over Longmont voters’ health concerns stemming from drilling. She pointed to a 1992 Colorado Supreme Court ruling that said cities can’t ban drilling, but can regulate energy development. Fracking for all practical purposes is drilling. The practice is so pervasive that the industry can’t do its business without it.

Mallard’s decision comes amid two pending statewide ballot proposals backed by Boulder Congressman Jared Polis that would give communities greater control to regulate drilling. One would require oil and gas drilling to be 2,000 feet from homes and businesses, and another would allow cities and counties to enact general environmental laws or regulations that are more restrictive than the state’s.

Unfortunately, there’s no direct applicability from Mallard’s ruling that would have any impact on the ballot initiatives. Initiatives 88 and 89 are not bans. But Coloradans for Responsible Reform fears that 89 could provide communities with enough latitude to pass regulations so rigid that they would become “de facto” bans. The initiatives would also alter the state constitution, so if they pass, they would eclipse state regulations which come in conflict with bans.

Still, we take the judge’s ruling as further evidence that the Polis-backed initiatives are a legal and economic nightmare waiting to happen. As Mallard’s ruling indicates, the state has a compelling interest in efficiently developing oil and gas and the initiatives clearly stand in the way of that. This “irreconcilable conflict” is a recipe for a lawsuit. To say nothing of the legal property rights of those who own oil and natural gas beneath the surface.

We’ll know shortly whether initiatives 88 and 89 make it to the November ballot. Supporters have until Aug. 4 to gather 86,105 valid signatures. If they’re successful, Gov. John Hickenlooper and CFRR are committed to doing “whatever it takes” to defeat the measures.

“It’s clear these initiatives will kill jobs and damage our state’s economy,” Hickenlooper said. “The oil and gas industry can operate safely, but it will be crippled if these measures pass. These are radical ideas that have no place in our state Constitution.”

We agree. CFRR notes that while oil and gas may be the main targets of the initiatives, the fact is that all businesses could be harmed by the “broad prohibitions” contained in initiative 89.

Something to think about.


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