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May 2 Colorado Energy Cheat Sheet: Supreme Court rules on fracking bans; ALA report on ozone misleading; some officials want all the regulations

Craig Power Station
Craig Power Station in Craig, Colorado

The Colorado Supreme Court’s long-awaited ruling on local fracking bans and moratoria has upheld long standing precedent:

The Colorado Supreme Court today upheld decades of state law that places authority over hydraulic fracturing, or fracking, squarely in the hands of state officials.

The court ruled in a pair of cases, which garnered national attention, aimed at voter-approved bans on fracking in Fort Collins and Longmont.

In the case of Fort Collins, where voters in 2013 approved a five-year moratorium on fracking in the city, the court ruled that “Fort Collin’s five-year moratorium on fracking and the storage of fracking waste operationally conflicts with the effectuation of state law. Accordingly, we hold that the moratorium is preempted by state law and is, therefore, invalid and unenforceable,” the decision read.

In Longmont, where voters approved a ban on fracking in the city in 2012, the court used identical language. Ultimately finding that “Longmont’s fracking ban is preempted by state law and therefore, is invalid and unenforceable.” (emphasis added)

More on the ruling:

“The Oil and Gas Conservation Act and the Commission’s pervasive rules and regulations … convince us that the state’s interest in the efficient and responsible development of oil and gas resources includes a strong interest in the uniform regulation of fracking,” the court wrote in the Longmont ruling.

The city’s voters in 2012 passed an outright ban on fracking, the process of injecting sand, water and a proprietary mix of chemicals underground to extract oil and natural gas.

Likewise, the court found that Fort Collins’ five-year moratorium, which voters approved in 2013, renders state regulations “superfluous” until 2018.

“In doing so, the moratorium materially impedes the effectuation of the state’s interest in the efficient and responsible development of oil and gas resources,” the court wrote.

To read the full decisions, click below (PDF):

Fort Collins ruling

Longmont ruling


Today’s court ruling on local bans notwithstanding, efforts to impair Colorado’s ability to develop its natural resources responsibly (see ruling above) through other means continues apace:

Environmental activists in Colorado managed to get the state’s Senate to consider a pair of bills Wednesday that would make hydraulic fracturing, or fracking, a lot harder to carry out in the state.

One of the bills up for debate Wednesday would place the legal blame for any earthquakes on companies engaged in fracking, even though multiple independent studies from seismologists, geologists and government agencies have confirmed that fracking does not cause damaging earthquakes. This bill was sponsored by Democratic State Rep. Joe Salazar.

The other bill would allow local governments to veto fracking projects, which is a power currently reserved for the state. This bill was sponsored by another Democrat, State Sen. Mary Hodge.

The pair of bills are unlikely to pass, but appear to be an attempt to build political support for ballot initiatives this November, as their sponsors sought political support from the green group behind a political campaign of 11 ballot measures proposed to the state legislature in January. The ballot measures would do everything from delaying fracking permitting processes to amending the state constitution to outright ban fracking in Colorado.

The bills will surely fail in the session (the one on earthquakes already has), but the stage has been set by both the court in its ruling (while the outcome was unclear until today, the reaction was expected) and the rhetoric of anti-energy, anti-fracking forces in the state for at least the past four years. The attempt to mitigate contention on the issue in 2014-2015 with a state commission on fracking issues failed to achieve the necessary restrictions sought by the opponents of hydraulic fracturing and to a much greater extent, all natural resource development. Well-heeled out-of-state organizations have received cover from in-state organizations and activists, but the message has been consistent–a desire for a ban at any and all levels possible or, failing that, regulations so restrictive or so heavily focused on one area (Weld County, for example) as to constitute a de facto ban.

More from Hickenlooper:

Asked Thursday if he felt that activists and legislators were done reviving these issues, the Democratic governor said he did not know, owing to the fact that the battle over the use of one’s mineral rights versus the enjoyment of one’s property can be a deeply personal one.

And in comparing it to a former battle over privacy versus national security that ended up in the legalization of wire taps, he said that he believes there is still room to find compromise between competing interests.

“I think we’re going to have to end up in something like that with these issues … where there’s going to have to be some way of engineering a compromise,” Hickenlooper said.

As we will see with the push this fall on the anti-fracking ballot measures, compromise isn’t in the activists’ vocabulary.


Energy Policy Center analyst Simon Lomax deconstructed the recent American Lung Association report that again dings Colorado for ozone issues, and finds deception at play:

The American Lung Association last week gave Denver an “F” in its annual air-quality report card — the same grade as Los Angeles. Denver was even ranked one of the nation’s “most polluted cities.”

Within hours of the ALA’s release of its 2016 “State of the Air” report, a concerned “asthma sufferer” was on the TV, speaking to Denver 7, the local ABC affiliate. “Especially on high ozone days, I can pretty much tell from the minute I wake up that my chest is tighter,” she said while using her inhaler. “I have excessive coughing, wheezing.”

Call me cynical, but something about the interview seemed off.

For the past four years, I have worked with pro-business groups like Energy In Depth and the Center for Regulatory Solutions, and more recently the Independence Institute, a free-market think tank. So, in fairness, it’s my job to question the work of the ALA, Sierra Club, Natural Resources Defense Council and other like-minded activist groups. Also, before going into advocacy, I was a news reporter for many years. My editors always used to say: “If your mother says she loves you, check it out.”

So I checked it out.

It turns out the “asthma sufferer” on TV is a paid ALA staffer. A staff bio on the group’s website shows her hobbies include snowboarding and hiking. So, despite her asthma and the state’s supposedly poor air quality, she seems to maintain an active outdoor lifestyle. Good for her.

Be sure to read the rest of Simon’s analysis at the Denver Post.


More regulations, supported by the former chair of Gov. John Hickenlooper’s fracking committee:

WASHINGTON – La Plata County Commissioner Gwen Lachelt voiced support for the Bureau of Land Management’s proposed natural gas waste rule on Wednesday during a congressional hearing.

“In my county, we have more than 3,300 wells, with many of them on tribal and public land, and tens of thousands of additional wells across the state line in New Mexico,” Lachelt told the House Natural Resources Subcommittee on Energy and Mineral Resources.

“While oil and gas development can provide jobs for our residents, we must ensure it is done in a safe and responsible manner. We cannot allow the waste of these resources, which belong to all Americans.”

The BLM’s proposed rule would limit the amount of methane and other natural gases lost from venting, flaring and leaking from oil and gas operations on public and Indian lands.

In announcing the rule in February, the Department of the Interior reported that the amount of natural gas lost between 2009 and 2014 could power more than 5 millions homes for a year, with states, Indian tribes and the federal government losing as much as $23 million in annual royalty revenues.

But opponents of the BLM’s rule view it as an overly constraining regulation on the oil and gas industry.