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Brendon Bosworth | Sep 12, 2012 04:05 PM

School kids in Colorado have to walk at least 1,000 feet from the playground to reach the nearest medical marijuana dispensary. But if they want to clamber around on the closest oil and gas well instead of trying to scrounge crumbs of THC-laced brownies spilled on the sidewalk, they have to stroll only about a third of that distance. That’s how state law regulating oil and gas development in the Centennial State works: Oil and gas wells must be at least 350 feet away from schools or homes, while dispensaries need to be 1,000 feet away. And as the city of Longmont, a municipality on the Colorado Front Range recently discovered, the state does not play nice with city governments that introduce legislation to the contrary.

Longmont, a less gentrified neighbor of the city of Boulder, sits on the Wattenberg oil and gas field not far from Weld County, a hotbed for oil and gas drilling. The field has proved to be very profitable for oil and gas companies, and Longmont currently hosts 13 active oil and gas wells within its city limits. In an effort to regulate how future oil and gas development will play out in the city, in July the city council approved a rule banning drilling in residential zoning districts, along with placing tighter regulations on drilling. Significantly, the ordinance recommends that wells be drilled at least 750 feet away from occupied buildings, parks and playgrounds (coincidentally, the city has also banned medical marijuana dispensaries). Drillers that agree to the setback limits will receive an expedited permitting review process. Operators who don’t find the setback distance suitable can apply for a traditional and longer approval process, says Rigo Leal, spokesperson for the city of Longmont.

The local government’s emboldened stance did not go down well with the Colorado Oil and Gas Conservation Commission, the state entity responsible for regulating oil and gas development in Colorado, however. Shortly after the ruling it sued the city, claiming that it was infringing on the state’s authority to “foster the responsible development of Colorado’s oil and gas resources in a manner consistent with protection of public health, safety, and welfare.” The suit is also based on the argument that parts of the city’s ruling “preempt” the Colorado Oil and Gas Conservation Act (the concept of preemption is discussed in the HCN blog “Beyond Control”). The Colorado Oil and Gas Association, a trade organization that promotes natural gas development in the state, has also jumped into the fray and challenged the city in court.

Residential well

The city’s legal team, meanwhile, argues that the COGCC lacks the authority to sue the city and the case should be booted out of court. They reason that the new regulations have not yet harmed the commission or any other companies and labeled the COGCC’s suit “unripe,” which is legal jargon for “you don’t have anything to sue us about because no actual controversy has yet come into play.”

For that reason the state might lose in court, says Bruce Baizel, senior staff attorney with Earthworks, a nonprofit organization that runs the Oil and Gas Accountability Project. “Courts usually don’t like to make speculative decisions, and that’s a bit what they’ve been asked to do by the state here.”

Colorado has seen its fair share of similar battles in the past. Back in 1985, the northern Colorado town of Greeley put an all-out ban on oil and gas wells inside city limits, which the Supreme Court quashed in 1992. Likewise, in 1988 La Plata County, where the town of Durango sits, introduced strict regulations, which it had to water down in the wake of industry lawsuits (Ray Ring’s HCN feature article “Backlash” covers the finer details). More recently, El Paso and Arapaho counties tried to tighten the screws on local oil and gas regulations, drawing condemnation from the state, whose attorney general John Suthers argued that “responsible government requires uniform regulation.” Counties and cities that enact their own legislation upset this uniformity and, as history shows, invite lawsuits in the process.

In Colorado, such lawsuits tend to crop up when drilling arrives in new areas and there is a perception that the state is not adequately regulating oil and gas development, says Baizel. “If the state makes some rapid strides in regulation, and regulates more stringently, then I think you’ll see some of the local government efforts die down,” he says.

But it seems state regulations in Colorado won't mix well with the current crop of local-level ones. As state legal representatives wrote in the suit against Longmont: “no possible construction of the disputed provisions of the [City of Longmont’s] ordinance can be harmonized with the state regulatory regime.”

The state has already pulled on its big gloves for the fight against Longmont but there could be another battle on the horizon. In November, citizens of Longmont will vote on whether hydraulic fracturing, a process for extracting natural gas that involves blasting a combination of water, chemicals and sand into underground fissures to break them open and release gas, should be banned within city limits. The citizens group Our Longmont, which has the support of Food and Water Watch, an advocacy group that is campaigning to ban hydraulic fracturing nationally, collected signatures for the ballot measure.

If the measure is inked into law, Longmont will become the first city in Colorado to ban hydraulic fracturing. But, based on the state’s reaction to the recent regulations, it’s unlikely such a move would go down smoothly at all.

Brendon Bosworth is a High Country News intern.

Image courtesy wikimedia commons user Plazak.

Pete Taibei
Pete Taibei
Oct 03, 2012 10:29 PM
Based on how the Supreme Court interprets privately held mineral rights, it's unlikely a ban on hydraulic fracturing will go down well anywhere in the US. But for now, such bans have been enjoying a grace period, as a surplus of fertile locations and a shortage of rigs and workers means the rigs tend to follow the path of least resistance. That won't last forever, eventually one of these bans will be challenged, and it will likely lose, based on the "pro mineral rights" history of SCOTUS. (To say nothing of it's current membership).

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