Cities Fight for Fracking Bans in Colorado

DENVER (CN) - Two cities argued for their right to implement city-wide bans on hydraulic fracturing, or fracking, in front of the Colorado Supreme Court on Wednesday.

Protesters gathered outside the courthouse during two hearings, holding signs that read "Frack NO!," "Prohibit Fracking In City Limits," and "Our Communities Will Not Be Sacrificed For Corporate Profit."

The Colorado Oil and Gas Association, or COGA, has been fighting two separate bans in the Colorado cities of Fort Collins and Longmont since 2012, when Longmont banned hydraulic fracturing through a citizen vote.

Fort Collins instituted a five-year suspension on the drilling technique a year later.

COGA filed lawsuits against both cities, arguing that they were trying to exercise a power that local governments do not have. The association also argued that the power to regulate fracking activities rests solely with the state government.

Fracking involves shooting thousands of gallons of chemical-laden water into the ground to fracture solid ground and rock to access previously unobtainable gas reserves. It has become an important staple in Colorado's economy, supporting over 111,000 Colorado jobs and pulling in over $1.6 billion in revenue annually in previous years, according to reports.

But environmental hazards have plagued the industry, as one study found that methane gas and other toxic chemicals used in the process can bleed into surrounding groundwater. Over 50 percent of the fracking water, which is not biodegradable, is left in the ground after the process is over, environmentalists say.

While lower courts sided with COGA in both cases, the Longmont and Fort Collins lawsuits were remanded to the state's high court by the Colorado Court of Appeals.

Fort Collins attorney Barbara Green addressed the nascent nature of the case at the Wednesday hearing, admitting that it was a "case of first impression," but said that doesn't necessarily mean Fort Collins' fracking suspension isn't supported by law.

"Although...it's the first time this court has looked at a moratorium on oil and gas, principles of law are well settled," Green said. "And we're asking you to apply those principles in this case."

Green explained that Fort Collins' moratorium didn't override state law, and instead coexisted with it because the "field of law" about fracking rights was not entirely "occupied" by state law on its own.

"The state has not occupied the entire field, leaving no room for local enactments," she said. "If the courts were to decide otherwise, it would overturn an entire body of law."

But COGA attorney Mark Mathews said that the crux of the problem was just that, claiming local bans on Colorado's fracking industry are in fact contradictory to state law.

"State law here, as we discussed previously, included a specific statute that allows the [Colorado Oil and Gas Conservation Commission] to regulate the chemical treatment and shooting of wells...and extensive regulation on hydraulic fracturing," Mathews said. "Because Fort Collins' moratorium is essentially a five-year ban on the use of hydraulic fracturing, it conflicts with state law, because state law expressly regulates and authorizes hydraulic fracturing."

David Kramer, representing the city of Longmont, addressed the legal tests that could be applied to the issue.

He said the most relevant test, the operational conflict test, is a "fact-based analysis" that would require the state and the oil and gas industry to prove that such city-wide bans would interfere with the state's interest in oil and gas production.

"The way to do that is, go back, allow the parties to compile a full evidentiary record, and have an evidentiary hearing," Kramer said. "That hasn't happened here."

What the issue truly came down to, the attorney said, is that Longmont did not ban oil and gas drilling - it banned fracking.

"Operators have been drilling without fracking in an economic way for over a hundred years," Kramer said. "There is an alternative technique called underbalanced drilling, which allows operators to produce even more efficiently than with fracking."

Kramer said oil and gas giant Weatherford International, based in New York, a state that has banned fracking entirely, "reported a four-fold increase in productivity of oil and gas" after implementing underbalanced drilling.

In a statement to the press after the hearing, COGA attorney Mathews drew a final line in the sand.

"Local governments can still regulate aspects [of the drilling]," Mathews said. "But bans on the use of hydraulic fracturing are off limits."

The Colorado Supreme Court ruling is expected to take months.

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