When the people of Longmont voted in 2012 to ban fracking in their Colorado community, they knew it would put them in the cross hairs of powerful oil and gas interests.
The City Council had already been sued by the industry’s trade group as well as the Colorado Oil and Gas Conservation Commission, the state’s oil and gas regulator, for trying to restrict the controversial drilling technique.
So after 60 percent of voters cast ballots to keep fracking off Longmont’s 22 square miles, few were surprised when those same groups filed suit against the town. The plaintiffs argued Longmont has no authority to stop drilling.
“There was no question that we knew this was coming,” said Kaye Fissinger, a Longmont resident who was one of the drivers behind the town’s fracking-ban campaign.
“People are getting tired of powerful interests coming in and telling us how to live,” she said.
The 18-month-long legal fight has dragged the middle-class Boulder suburb, a software company hub of 86,000, into battle against various forces, including a 1990s court precedent that limits the town’s authority on drilling laws and zoning. The city has paid more than $61,000 in legal fees, and seems determined to go all the way to the state’s highest court. Longmont’s supporters have multiplied; they include several community and environmental groups, which are being represented pro bono by the Environmental Law Clinic at the University of Denver’s Sturm College of Law.
Now all eyes are on the judge, one of the first to hear such a case in a drilling-intensive state, as the debate over communities’ right to ban fracking spreads nationwide.
Boulder District Court Judge D.D. Mallard heard summary arguments in the Longmont case on July 9 and is expected to rule sometime this year. She could side with the state and overrule the ban or open up the issue to an official hearing next April. Her course of action seems to be anyone’s guess.
The industry-state argument against Longmont’s ban rests on a 1992 state court case called Voss v. Lundvall. That precedent-setting ruling said that a city cannot ban oil and gas drilling within its boundaries—only the state can.
“Our fundamental belief is that hydraulic fracturing is an extremely technical aspect of oil and gas drilling, and that’s squarely in the state’s purview and jurisdiction,” said Matt Lepore, director of the Colorado Oil and Gas Conservation Commission.
“And very similar to the Voss decision…we believe a city can’t ban this technical aspect of drilling through its boundaries,” he said.
Longmont’s lawyers have argued that the 1992 case occurred when the landscape of drilling was vastly different. Today’s fracking, where a mixture of chemicals, water and sand is blasted down a horizontal drilling well to extract fossil fuels, is more intensive than anything available 20 years ago. And the technology is much more widespread, multiplying the possible effects on the environment and the public.
Public understanding of drilling-related health science has also expanded since 1992, said Kevin Lynch, an Environmental Law Clinic attorney. So have state rules aimed at protecting public health.
Safety wasn’t considered in the 1992 case—but it’s one of the biggest reasons Fissinger and other Longmont residents voted for the ban. “I have three great grandchildren, anywhere from five and a half years to about four months. You know it’s their future that I’m concerned about,” said Fissinger, president of the community group Our Longmont that’s involved in the lawsuit.
But Fissinger worries about her own future, too: Less than a decade ago, she overcame lung cancer, but she still has respiratory problems and she’s not sure how fracking might dirty the air.
Doug Flanders, director of policy and external affairs at the Colorado Oil and Gas Association, the industry trade group behind the lawsuit, told InsideClimate News in an email: “The rules and regulations governing the oil and gas industry in Colorado are known as some of the most rigorous in the nation.
“For more than a decade, Colorado regulators, environmental groups, and the industry have worked together to create a series of national, precedent-setting regulations” including the most stringent air rules in the country, he said.
Another factor: Longmont has relatively few oil and gas deposits, compared to other parts of the state, Lynch said. So it might appear that Longmont has more to lose than the state has to gain.
According to the industry, Longmont’s oil and gas minerals are valued at $500 million.
Longmont is one of several Colorado communities emphatically airing their frustration with the oil and gas industry. Longmont’s Boulder County neighbor Lafayette similarly passed a fracking ban in November 2012. The towns of Broomfield and Fort Collins have approved temporary bans on fracking, too. These communities are also facing legal challenges—Longmont is just the farthest along.
There’s also a grassroots movement to give voters in the upcoming fall election a chance to increase environmental protection from drilling. Proponents of these initiatives have until Aug. 4 to collect the 86,105 signatures to get the measures on the ballot.
To ward off these initiatives, Gov. John Hickenlooper, a Democrat and former geologist who worked in Colorado’s oil and gas fields in his youth, proposed a special legislative session to reach a compromise on local control over fracking. However, he officially abandoned this effort on July 16, citing not enough stakeholder support.
There is no set deadline for Judge Mallard’s ruling in the Longmont case.
Whenever it comes, Kaye Fissinger is ready to fight as long as possible to keep Longmont frack-free. “We are going to take it all the way to the Supreme Court,” she said. “We have no doubt about that. Whichever way she goes, somebody is going to appeal.”