Earlier this month, the Colorado Supreme Court invalidated two municipalities’ bans on hydraulic fracturing, holding that the local ordinances instituting the bans were preempted by state law.  In City of Longmont v. Colorado Oil and Gas Association, No. 15SC667 (May 2, 2016), the Court held that an indefinite ban on fracking activity was preempted by the state’s Oil and Gas Act, which generally provides that fracking is permitted and supported in the state.  Similarly, in City of Fort Collins v. Colorado Oil and Gas Association, No. 15SC668 (May 2, 2016), the Court held that a local ordinance instituting a five-year moratorium on fracking that was slated to expire in 2018 was likewise preempted.

These decisions are a victories for the oil and gas industry, and they contrast favorably for that industry to Pennsylvania’s landmark 2013 decision in Township of Robinson v. Commonwealth, 623 Pa. 564 (2013), which we reported on here, and which empowered Pennsylvania’s municipalities to impose siting and zoning restrictions on hydraulic fracturing under the Environmental Rights Amendment to the Pennsylvania Constitution in spite of the state legislature’s Act 13 which aimed, in part, to prevent such limiting local ordinances. 

As a precursor to its preemption analysis, the Colorado Supreme Court determined that the cities’ ordinances raised issues of both state and local concern, not simply purely local issues, as the municipalities and their supporters argued.  The Court found that the ordinances impacted statewide issues principally because of the perceived need to regulate the natural gas industry in a uniform manner across the state and the potential extraterritorial impacts of the ordinances, most notably the prospect that they would encourage other municipalities to follow suit, “which could ultimately result in a de facto statewide ban.”  Longmont, at 15.  Like the Commonwealth of Pennsylvania, Colorado is a Home Rule state, and both Longmont and Fort Collins are recognized as home rule cities.  Because the Court ruled that these ordinances presented issues of mixed state and local concern, the cities’ status as home rule cities could not function to prevent a further preemption analysis.

The Court next evaluated whether the ordinances conflicted with the operation of the potentially conflicting state law.  The state law at issue, Colorado’s Oil and Gas Conservation Act, provides:

It is the intent and purpose of this article to permit each oil and gas pool in Colorado to produce up to its maximum efficient rate of production, subject to the prevention of waste, consistent with the protection of public health, safety, and welfare, including protection of the environment and wildlife resources, and subject further to the enforcement and protection

C.R.S. § 34-60-102(1)(b).  The Court found that Longmont’s complete ban on fracking “impedes the effectuation of the state’s interest … and the application of state law.”  Longmont, at 25.  It further found that even Fort Collins’ five-year moratorium rendered the state’s Oil and Gas Conservation Act “superfluous,” and that Fort Collins’ ordinance “materially impedes the effectuation of the state’s interest in the efficient and responsible development of oil and gas resources.”  Fort Collins, at 14.  The Court left the door open for municipalities to implement significantly more “brief” moratoria if their purpose would be justified, but it considered Fort Collins’ five-year moratorium as essentially on par with Longmont’s total ban.

The Colorado Supreme Court’s analysis of these cases differed from the Pennsylvania Supreme Court’s analysis in Robinson Township, perhaps most notably in that the Colorado cases did not involve a Constitutional environmental rights amendment.  In future similar cases in other states, the presence of similar constitutional amendments to Pennsylvania’s environmental rights amendment, and the value on which the respective state courts place on such an amendment, may be an important factor distinguishing factor.  Regardless, for state courts across the country, the Colorado and Pennsylvania decisions may serve as competing models for evaluating whether local municipalities have the authority to regulate hydraulic fracturing activity through land use ordinances without running afoul of state laws.

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