Reaching for the Stars in Colorado’s Battle Against Fracking
Earlier this month, in a decision that can only further galvanize the push for local control of fracking in Colorado, a state court held that a democratically enacted fracking ban was invalid because it conflicted with the state’s interests in promoting mineral development. The people of the city of Longmont overwhelmingly passed the ban in 2012 after deciding that they did not want to live their lives and raise their children under the ongoing threats to health and the environment posed by this irresponsible method of mineral extraction. The Longmont ban has helped spur the anti-fracking fight across the country, in no small part because it was achieved in the face of incredible odds: the industry spent nearly half-a-million dollars to defeat the measure and Colorado’s Governor threatened to sue any community that banned fracking.
Despite these intimidation tactics, Longmont’s citizens voted for the ban knowing full well the uphill battle they faced in Colorado’s courts. Unlike New York, a state where no fracking currently exists and where courts recently upheld the long-established rights of local communities to enact local land use controls on industrial activities like fracking, the Colorado legislature and courts have spent the last several decades actively handing the state over to the oil and gas industry with little regard for the rights of citizens and the health and safety of local communities. Even Colorado’s current Democratic governor, John Hickenlooper, is an ex-employee of the oil and gas industry who likes to boast that he drank fracking fluid. Coloradans are living with a fracking fiasco that hopefully New York never sees.
The politicians’ ongoing effort to grease the skids for oil and gas development has resulted in an industry free-for-all in Colorado. There are over 52,000 active fracking wells in Colorado, with Hickenlooper’s agency approving an average of 4,000 new permits each year. This proliferation of wells has led to over 2,000 spills in the last 5 years, of which nearly 200 have impacted groundwater—now spills have reached a rate of 2 per day. Coloradans have reported experiencing terrible health impacts from living near wells and precipitous drops in their property values. A recent study showed that nearby proximity to oil and gas drilling, including fracking,was associated with a greater incidenceof birth defects in Colorado.
It is against this oppressive backdrop that the heroic citizens of Longmont and the lawyers who represented them in court have been fighting their ongoing battle to save their communities. And it’s a battle that continues even with the decision to preempt the Longmont ban because even the court seemed to recognize that it’s time for to revisit whether the interests of oil and gas should continue to take precedent over the health and safety of local communities and citizens of Colorado. In its finding, the court stated:
Longmont and the environmental groups, the Defendant-Intervenors, are essentially asking this Court to establish a public policy that favors protection from health, safety, and environmental risks over the development of mineral resources. Whether public policy should be changed in that manner is a question for the legislature or a different court.
Tellingly, the court also left the fracking ban in place until the people of Longmont have had a chance to file their appeal and seek the change needed to protect their towns and their residents.
One of the legal arguments Longmont made in its case to ban fracking was that a ban did not conflict with an Oil and Gas Conservation Act that makes no mention of fracking, but does demand that oil and gas be developed “in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.”Although the court ultimately disagreed, its open invitation to appeal while maintaining the ban leaves Longmont positioned to reverse the misguided state policy of placing industry’s financial interests over those of citizens’ health.
Some have suggested that Longmont may have reached too far in banning fracking, that land use approaches would have been an easier fight. But that suggestion ignores the depth of control oil and gas has in Colorado. A 2002 state court case held that it’s the state that determines oil and gas land use restrictions like setbacks, noise abatement, and visual impacts, not local governments who are preempted from enacting more protective standards. It also ignores the fact that new land use laws generally allow for existing nonconforming uses to continue. Since there’s no fracking in NY, that preexisting use doctrine doesn’t present the problem it does in an already-fracked Longmont.
The fact is, when it comes to stopping fracking in Colorado, there is no easy fight. Longmont’s fracking ban is a reach, but it’s a reach for the stars; advocates who are fighting for their very futures should never reach any lower. Thanks to the people of Longmont, there is still now, nearly two years after its passage, a fracking ban in place in a state in which oil and gas is king (and governor). And there’s now a chance, while the Longmont case moves into higher courts and fractivists across the state rally to fight for additional local bans and moratoria, statewide ballot initiatives and constitutional amendments, to bring to Colorado what New Yorkers and some others across the country have enjoyed for years – the right to determine the rights and futures of their communities and to live free from contamination caused by reckless oil and gas extraction. It’s a fight we should all be applauding.