Colorado Town to Ask Higher Court to Uphold Its Fracking Ban

Longmont 'continues to imply that decades of established law on regulating oil and gas operations somehow doesn't apply to them,' says industry official.

Site of a drilling operation in the community of Battlement Mesa, Colorado. Credit: Ecoflight

Leaders of a Boulder, Colo. suburb on the front lines of the fight against gas drilling recently voted 7-0 to appeal last month's court ruling that overturned the city's ban on fracking.

The city council's unanimous vote not only brings the high-profile anti-fracking case back to court, but also guarantees the town of Longmont a few more years free of fracking. That's because of the last few sentences in the court ruling, which says the judge would agree to uphold the ban during the appeal if the town asked for it.

The city of Longmont—and the local and environmental groups that later joined the case—have until Sept. 11 to file the appeal.

Pauline Christensen, a Longmont city councilwoman who is happy to keep the lawsuit alive, told InsideClimate News: "I want to appeal this as far as we can."

It's what the town wants, she added. Before the recent vote, Christensen had received dozens of letters asking her to support the appeal.

Longmont, a middle-class community of 86,000, is one of the first Colorado cities to push back against the controversial practice of oil and gas extraction that has becoming increasing popular in the state and nationwide. Around 60 percent of Longmont residents voted for the ban in November 2012. The town has already spent more than $61,000 in legal fees to protect the ban.

Fracking, or hydraulic fracturing, a process that involves blasting a cocktail of chemicals, sand and water down a well to blast open cracks in shale rock and extract fossil fuels, has driven a surge in U.S. energy production. Although fracking is a boon for the economy, there's a growing backlash against the industry. Fracking opponents, including those in Longmont, are concerned about the potential public health consequences from air quality impacts and tainted water—and believe the current industry regulations aren't protective enough.

Within weeks of Longmont's passing the ban in 2012, the Colorado Oil and Gas Association, an industry trade group, filed a lawsuit against it. The state's energy regulators at the Colorado Oil and Gas Conservation Commission joined the suit. So did TOP Operating, a local operator.

Ban opponents had argued that Longmont's ban goes against a 1992 precedent-setting court decision, called Voss v. Lundvall. That ruling said only the state, not a city, could ban oil and gas drilling.

Boulder district judge D.D. Mallard ultimately overturned Longmont's ban on July 24.

However, the town and associated activist groups then had 44 days to file an appeal. According to the judge's ruling, the fracking ban would remain in effect during those that time, and possibly for the rest of an appeal, too.

Judge Mallard said in the ruling she would extend the ban if the defendants ask for it—a move the town and activist groups are planning.

Longmont resident and activist Kaye Fissinger is thrilled about the appeal and the fact that the move keeps the fracking ban alive a little longer. She told InsideClimate News, "The city's attorneys have indicated that the legal process should keep fracking at bay for two to five years."

Tisha Schuller, president of the Colorado Oil and Gas Association, said in a statement that she was disappointed by the appeal and is baffled that the "Longmont City Council continues to imply that decades of established law on regulating oil and gas operations somehow doesn't apply to them, and that court decisions upholding that law are out of bounds."

In fact, multiple district courts have stated clearly that local bans on hydraulic fracturing are unlawful, said Schuller. On Aug. 7, the Colorado town of Fort Collins had its fracking ban overturned. Earlier this week, Judge Mallard from Longmont's case ruled to repeal a ban in the city of Lafayette.

At the same time Longmont is pushing ahead with the ban appeal, the town is wrapping up a separate fracking-related lawsuit.

Before a fracking ban was really on Longmont's radar, the town passed a set of oil and gas rules that were stricter than those at the state level. In response, Colorado's oil and gas regulators sued the town.

Due to a deal struck by Gov. John Hickenlooper in early August, the state regulators are now dropping this rules-related lawsuit.

Consequently, Longmont will have fracking rules that go above and beyond those at the state level in terms of protecting people's health and environment, regardless of how the fracking ban lawsuit plays out. However, other towns seeking to emulate Longmont and pass stricter rules than the state's laws will not be spared a legal fight.

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