A Boulder County District Court judge has struck down Longmont's fracking ban but said the ban can remain in place while the city considers an appeal.
Judge D.D. Mallard issued the summary judgment Thursday. In the ruling, she said Longmont's charter amendment clearly conflicted with the state's regulations and its interest in the efficient development of oil and gas deposits.
"While the court appreciates the Longmont citizens' sincerely held beliefs about risks to their health and safety, the court does not find this is sufficient to completely devalue the state's interest," Mallard wrote.
Mayor Dennis Coombs said he was disappointed that Mallard ruled against the ban, which was added to the city charter as Article 16 by Longmont voters in 2012.
"I have been pleased with our vigorous defense of Longmont's charter and we are considering all our options moving forward," Coombs said in a Thursday evening statement.
The case had been scheduled for an evidentiary hearing in April. According to city officials, Longmont has spent $116,324 defending the ban as of June 30.
The ban forbids the practice of hydraulic fracturing, which uses high-pressure water, sand and chemicals to crack open hard-to-reach oil and gas deposits. Also known as "fracking," the practice is considered standard in the industry but has been criticized by a number of environmental groups.
The Colorado Oil and Gas Association, the state's largest industry group, sued in 2012 to overturn the ban. It was joined by the Colorado Oil and Gas Conservation Commission — the state agency that regulates the industry — and TOP Operating, the principal oil and gas company active in Longmont.
"The ruling today is not just a win for the energy industry but for the people of Colorado," said Tisha Schuller, COGA's president and CEO. "The decision demonstrates that the rule of law will prevail in how Colorado oversees one of the most important industries in this state."
She added that COGA valued the role of local governments and wanted to work with them "harmoniously."
The COGCC also has sued Longmont over tightened oil and gas regulations the City Council passed in 2012. That lawsuit is still pending.
Colorado Attorney General John Suthers praised Mallard's decision, saying that the law allowing state regulations to preempt local drilling rules was clear.
"The court got it right," Suthers said. "Under the current law, local governments can't ban fracking."
The city was joined in the suit by the Sierra Club; Food and Water Watch; Earthworks; and by Our Health, Our Future, Our Longmont, the local group that first put the ban before voters.
Kaye Fissinger of Our Longmont said Thursday that the group intended to appeal the case, all the way to the Colorado Supreme Court if necessary. City officials have not yet said if they will file an appeal.
"We need fresh eyes," Fissinger said. "We knew from the start that no matter how it was ruled, it was going to be appealed. If the ban was upheld, the industry would have appealed just as quickly."
Under Colorado law, cities cannot ban drilling entirely but can regulate aspects of it that don't cause an "operational conflict" with state law. To decide if there's a conflict, judges look at whether there's a need for uniform statewide rules, whether local rules have an impact beyond local boundaries, whether the issue is traditionally regulated by state or local governments and whether the Colorado Constitution explicitly gives authority to the state or the local government.
Mallard also looked at whether the matter was mainly of local or state interest, deciding in her ruling that it was a mix. When both sides have an interest, the two sets of rules can sit side-by-side, but if any conflict rises, the state rules take precedence.
In its case, Longmont argued that the state had no rules on fracking, beyond requiring operators to give 48 hours notice and to disclose the chemicals used. In particular, no permits or permissions were required.
"The COGCC's rules amount to non-regulation of hydraulic fracturing," attorneys for the city wrote in May.
Mallard, in her decision, said she wasn't convinced. The COGCC regulates the industry, she wrote, and fracking is one of the practices of that industry.
"Longmont complains that the Commission does not issue permits to frack, it does not tell operators whether to frack a well, it does not tell operators how often to frack a well. ... Instead, these decisions are left to the operators and the professionals who advise them," Mallard wrote. "The court does not see a problem with this arrangement. The purpose of the agency is to provide oversight of the industry, not to micromanage it."
The city and the environmental groups had also argued that much of the case law on drilling was developed before modern drilling practices, and that more weight needed to be put on the effects to health, safety and welfare — a goal that is also part of the COGCC's charter.
Even if that were the case, Mallard said, her courtroom wasn't the place to establish a new public policy.
"Whether public policy should be changed in that manner is a question for the legislature or a different court," Mallard wrote in her decision.
Under the law as it stands, she said, "There is no way to harmonize Longmont's fracking ban with the stated goals of the Oil and Gas Conservation Act. ... The conflict in this case is an irreconcilable conflict."
Fissinger said she did want to see health issues given a greater priority and hoped a higher court would agree.
"We're sorry that the judge didn't give a stronger emphasis to health, safety and welfare," she said. "But she did bring it up and invited other courts to address this."
Contact Times-Call staff writer Scott Rochat at 303-684-5220 or email@example.com