Monday, December 3, 2012

Yet Another Ban on Fracking

The City of Longmont, Colorado, or rather the voters therein, just passed a ban on not only the use of hydraulic fracturing for the recovery of oil and gas within the city limits, but also on open storage pits and the disposal of solid or liquid wastes associated with oil and gas drilling and/or production.  The vote was 59% for the ban. 

The City of Longmont had earlier placed a moratorium on such operations as it developed its own regulations - based on citizen opposition.  The council eventually developed its own regulations and then lifted the moratorium as those new regs took effect.  Poor Longmont, they then got it from both sides.  The state of Colorado sued in July claiming that only the state Oil & Gas Commission can regulate the industry, and a green citizens' group named “Our Health, Our Future, Our Longmont” placed an initiative on the November 6 ballot called Question 300 - which would actually ban the procedure if passed, because they didn't think the regulations went far enough in protecting their health and environment.  Well it passed, and now it seems, no one is happy but for the pro-Question 300 folks.

This approach to oppose fracking - township or city or county governments regulating it out of business or outright banning it - has been tried many, many times in the past, and has most of the time been challenged in court by the pro-energy development forces - either the governing bodies wanting to cash in on the development, or by the oil and gas industry, or the individual oil and gas companies themselves.  Everyone, including the folks of “Our Health, Our Future, Our Longmont” expect such a legal challenge in the Longmont case as well.  I guess that's how the system works.

I'm sorry to say that I'm not up on how most of the industry challenges have turned out in the other cases of government controls or bans.  I do know that a 2-year moratorium on drilling instituted by the City of Binghampton, NY was recently struck down by a state judge. In this case, the court said that not sufficient "emergency need" was demonstrated by the city since there was still a statewide moratorium in effect in NY State.

Does anyone have some specific case results they'd like to share?  I'm guessing it's going to be a mixed bag, some failing and some successful.  As with many resource issues, it seems, "who" gets to say what the rules are is just as important, if not more so, as the rules are themselves.  And there is always a higher level of government wanting to be that rule-maker in the really important issues.


December 11, 2012 Update:  Colorado Governor Hickenlooper has announced that the state of Colorado will not sue Longmont over its recent fracking ban, but that the state will support oil and gas companies that do file suit.  See his comments here.  He says he thinks the ban is a regulatory takings of mineral rights from private owners, but doesn't feel comfortable with the state filing suit since the state doesn't own any such rights.

December 18, 2012 Update:  Colorado Oil and Gas Association (COGA) has filed suit against the City of Longmont asking the courts to invalidate the recent voter's ban on fracking operations.  COGA says the ban denies property owners the right to develop their property and also prohibits a private activity that is allowed by state law.  The City of Longmont says it will vigorously defend the voters' action.  This will get interesting.

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