Can cities ban fracking? Colorado high court to decide

Voters in two Colorado cities, Fort Collins and Longmont, have banned hydraulic fracturing, aka fracking. Is that legal? 

(AP Photo/David Zalubowski, file)
An activist waves a placard in February 2015 calling for the ban of fracking during a news conference outside the Colorado Convention Center in Denver as the Oil and Gas Task Force meets inside the facility to put the final touches on recommendations for Colorado Gov. John Hickenlooper to consider in the settlement of disputes over oil and gas drilling. The Colorado Supreme Court agreed on Monday, Sept. 21, 2015, to decide whether cities can ban hydraulic fracturing, stepping into a high-stakes battle to determine if local governments can impose tougher oil and gas rules than the state.

The Colorado Supreme Court agreed Monday to decide whether cities can ban hydraulic fracturing, stepping into a high-stakes battle over whether local governments can impose tougher oil and gas rules than the state.

The court will hear cases from Longmont, where voters banned hydraulic fracturing in 2012, and Fort Collins, where voters approved a 5-year moratorium in 2013.

The Colorado Oil and Gas Association sued the two cities, and lower courts overturned the local restrictions, saying regulation is the state's prerogative. The cities and several environmental groups appealed.

Hydraulic fracturing, or fracking, injects a high-pressure mix of water, sand and chemicals underground to crack open formations and make it easier to recover oil and gas. It's a widespread practice that led to an energy boom in Colorado, the nation's No. 7 energy-producing state, and elsewhere.

The state Supreme Court's decision could settle a long-simmering battle fought on multiple fronts in Colorado, including public health, the environment and property rights.

"I would say this is pretty huge," said Tanya Heikkila, an associate professor at the University of Colorado Denver who studies fracking policy debates.

The state has generally taken the position that only it has the power to regulate the oil and gas industry, and that local governments can participate in decisions about how drilling and fracking occur but not whether it should be allowed.

"Local governments obviously still want some say in the 'whether,'" Heikkila said. "The Supreme Court decision will clarify that issue."

Critics say fracking endangers public health and underground water supplies. The industry maintains it is safe.

Fracking has also intensified battles over property rights in Colorado. Landowners — sometimes called surface owners — often don't own the rights to the minerals underneath their property, setting up disputes over where and how the mineral owners can drill. Noise, lights and health worries generate complaints when drilling rigs set up near homes or schools.

New York state has banned fracking, citing environmental and public health risks. Energy-rich Texas and Oklahoma enacted laws in May that prevent local governments from banning fracking.

One of the proponents of the Longmont ban, a group called Our Longmont, welcomed the Supreme Court's decision to weigh in.

"This is an issue with profound consequences for our community and its residents," Our Longmont President Kaye Fissinger said.

Officials with Longmont, Fort Collins and the Colorado Oil and Gas Association didn't immediately return calls seeking comment.

The court didn't indicate when it might rule.

In June, the Environmental Protection Agency entered the debate with a report on the risks of fracking, as The Christian Science Monitor reported:

Proponents of fracking rejoiced at the EPA’s announcement that it “did not find evidence that these mechanisms have led to widespread, systemic impacts on drinking water resources in the United States.” Erik Milito, director of Upstream and Industry Operations at the American Petroleum Institute, said the victory for oil and gas companies came as no surprise.

“After more than five years and millions of dollars, the evidence gathered by EPA confirms what the agency has already acknowledged and what the oil and gas industry has known,” he said in an API press release. “Hydraulic fracturing is being done safely under the strong environmental stewardship of state regulators and industry best practices.”

While the report’s results initially sounded promising, critics latched onto the “but:” the EPA listed several ways in which fracking could potentially contaminate drinking water, and said that in a number of cases, water was, in fact, affected. Though cases in which drinking water was impacted were small in number compared with the sample size of cases studied overall, the EPA said the proportion could be inaccurate, a result of insufficient data and other limitations to the study.

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