Colorado Supreme Court Strips the Constitutional Right To Enact Local Fracking Bans
Landmark Decision Favors Oil and Gas Industry Over the Rights of Coloradans
Denver, CO – Today, the Colorado Supreme Court struck down the rights of Coloradans to protect their health, safety and well-being from fracking through the use of local bans. The justices denied residents their “right of enjoying and defending their lives and liberties; and of seeking and obtaining their safety and happiness” as outlined in the Colorado Constitution, by determining that oil and gas development is preempted by the state. This decision overturns the democratically enacted measure to ban fracking passed overwhelmingly by Longmont residents in 2012 and strips all Coloradans of their Constitutional right to say “no” to fracking in their communities in order to prevent problems inherent in fracking, including air pollution, health complications, water contamination and reduced property values.
“It is beyond comprehension that the Colorado Supreme Court still fails to recognize the rights of people to live in a safe and healthy environment,” said Kaye Fissinger, President of Our Health, Our Future, Our Longmont. “The state has declared that fostering oil and gas development is in its interest. That the court apparently equates a government interest superior to human rights is a severe slap in the face. Our country’s founding fathers are most certainly turning over in their graves,” Fissinger said.
In 2012, residents in Longmont passed a city charter amendment, Measure 300, which banned fracking and the disposal of its waste products, including injection wells within city limits, to protect homes, schools and public parks. The local ban passed with an overwhelming 60 percent majority despite being outspent 30-1 by the oil and gas industry. Governor Hickenlooper and the oil and gas industry sued Longmont over this democratically enacted measure.
“Today’s decision deals a devastating blow not just to Longmont residents, but to all Coloradans who have been stripped of a democratic process that should allow us the right to protect our health, safety and property from the impacts of this dangerous industrial activity,” said Lauren Petrie, Rocky Mountain Region Director with Food & Water Watch.
After appealing the District Court’s ruling in 2015, the Colorado Court of Appeals petitioned the Colorado Supreme Court to hear this case. In an unprecedented decision, the Colorado Supreme Court agreed to hear this case and listened to oral arguments in December, 2015, leading to this historic decision.
“Straight out of Orwell’s Animal Farm, the Colorado Supreme Court just decided that the oil and gas industry is ‘more equal’ than other industries,” said Earthworks energy program director Bruce Baizel. “Turning democracy on its head, today’s ruling prohibits local communities from deciding whether and how to balance their health against the fracking industry’s profits.”
Physicians, Scientists & Engineers for Healthy Energy conducted an analysis of peer-reviewed studies on the impacts of fracking and shale gas development. It found that 21 of 25 papers published on the health impacts show potential risks or actual adverse outcomes, including increased incidence of cancer and birth defects associated with living in close proximity to oil and gas wells. The group’s survey also showed that 33 of 48 water quality studies find either the potential for, a positive association with, or direct evidence of water contamination. In addition, 30 of 34 focused on air quality found elevated levels of air pollution, and that children are especially vulnerable to exposure to such pollution, according to the scientists.
As these inherent harms of fracking become ever-clearer, Governor Hickenlooper’s failed task force—formed in 2014 as a way to keep several anti-fracking measures off the ballot—has left municipalities frustrated as proposals to drill continue to encroach closer to homes and schools. In Adams County, a recent proposal to drill several new mega-facilities could place fracking wells within 100 feet from homes and a middle school. The Governor’s task force has failed to provide Coloradans with a way to protect their homes, families and futures from this dangerous, industrial activity.
“As a retired RN I am horrified that we continue to allow this toxic industry to operate next to our homes and schools,” said Karen Dike, of Rocky Mountain Chapter of Sierra Club. “The Colorado Supreme Court ruling discounts the inherent rights of the people of this state to have clean air to breath, fresh water to drink, land free of contamination and safe places to live, go to school and work. The ruling places profit of corporations before people and will allow the continuing toxic onslaught of this dangerous industry.”
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… “The court holds that Longmont’s fracking ban is preempted by state law and, therefore, is invalid and unenforceable,” the opinion said.
A ban on hydraulic fracturing, or fracking, was added to Longmont’s city charter by voters in 2012, but overturned by a district court judge in 2014 when the city was sued by the Colorado Oil and Gas Association. Top Operating joined the lawsuit against the city while four environmental groups joined Longmont’s side.
Colorado Supreme Court Justice Richard Gabriel delivered the opinion of the court, systematically rejecting most of the city of Longmont’s arguments. Gabriel acknowledged that fracking — where water, sand and chemicals are injected at high pressure to break open underground formations — is a controversial topic.
But the court isn’t meant to resolve the controversy between hydraulic fracturing proponents and opponents, the opinion said. Rather, the justices had to consider the narrower legal question of whether Longmont’s ban interfered in a significant way with state law.
The unequivocal answer is yes, Gabriel wrote. There was no dissenting opinion from the court.
“Even were we to accept the argument that fracking is not the only way to produce oil, gas or other hydrocarbons, it appears undisputed that fracking is now standard for virtually all oil and gas wells in Colorado,” Gabriel’s opinion said. “Longmont’s ban, if left in place, could ultimately lead to a patchwork of regulations that would inhibit the efficient development of oil and gas development.”
Plus, the ban could have cost mineral rights owners missed profits and could have encouraged other cities to ban fracking as well, “which could ultimately result in a de facto statewide ban,” the opinion said.
The Colorado Supreme Court’s decision will have a broad effect on other Colorado cities and counties with their own fracking bans and moratoria …
Colorado Supreme Court rules state law trumps local bans on fracking
State’s high court calls Longmont, Fort Collins measures on fracking “invalid and unenforceable”
… Conservation Colorado director Pete Maysmith called the rulings disappointing.
“We believe that good policy-making happens from the ground up and that local communities are best-suited to make decisions about what happens with oil and gas drilling within their borders. Local governments should have the ability to call a timeout on drilling in order to better understand its impacts and ensure safety and public health, just as they are allowed to do with other industries,” Maysmith said.
“We will continue to stand with the communities that are being dramatically impacted by oil and gas drilling. Their concerns have not gone away with today’s rulings,” he said.
“These decisions also show that the oil and gas industry’s threats of litigation are a hammer that the industry has no qualms about wielding against local governments if they decide to engage in land use planning. In order to combat this hammer, local governments must be empowered with better tools to protect their citizens from heavy industrial drilling” …