BOULDER, CO – No sooner had the Lafayette City Council, with three new members and a new mayor, sat down together for the first time this week than it found itself embroiled in a widening battle with the oil and gas industry over voter-approved bans on energy extraction.
Hours before the council convened Tuesday evening, the Colorado Oil & Gas Association announced that it had filed suit against Lafayette and Fort Collins challenging the legality of ballot measures passed last month that ban or limit new drilling activity.
The association, which represents oil and gas operators in Colorado, stated in a news release that the bans are “illegal since state regulations specify and the state Supreme Court has ruled that oil and gas development, which must employ hydraulic fracturing or fracking, supersedes local laws and cannot be banned.”
Lafayette now finds itself in a similar situation to that of its northern neighbor, Longmont, which was sued by the Colorado Oil & Gas Association nearly a year ago after voters passed a fracking ban there.
“The state hasn’t been as proactive as people want to protect against environmental impacts,” Lafayette’s new mayor, Christine Berg, said this week. “To me, (the ballot measure) is more about home rule and the right to determine industrial uses in our community.”
Berg, who voted for the Lafayette Community Rights Act last month, said the suit is far too fresh for the city to determine how it’s going to respond just yet. But she said there’s no doubt that more and more people have grown fed up with drilling rigs and well pads that have moved ever closer to neighborhoods and schools in the wake of a natural gas extraction boom in the state.
As of last month, there were 51,595 active wells in Colorado, according to state data. That’s twice the number of wells that were operating in the state a decade ago.
Fracking opponents claim the practice, in which a high-pressure blend of water, sand and chemicals is injected underground to help set loose elusive pockets of gas, threatens air and water quality and endangers human health. Industry advocates counter that fracking is safe, having been heavily regulated for decades, and that opponents are using scare tactics to get their message across.
But Berg said while the science of fracking can be debated, the world of oil and gas regulation in Colorado is clearly beginning to alienate an increasingly larger segment of the population. Beside Lafayette and Fort Collins, Boulder and Broomfield also passed fracking bans in November.
“The ballot measure is a strong message to the oil and gas industry that home-rule communities want a seat at the table and not have state law preclude them,” the mayor said.
Longmont paved the way. But exactly what kind of a seat, if any, municipalities will get in the war over oil and gas regulation in Colorado is not yet known. The answer will likely come from the courts, where two lawsuits against Longmont’s fracking restrictions are in process.
Beside litigation filed by the Colorado Oil & Gas Association last December, the Colorado Oil and Gas Conservation Commission sued the city in the summer of 2012 after the Longmont City Council passed a set of regulations restricting drilling in residential areas of the city.
Gov. John Hickenlooper has spoken out against attempts by local governments to ban drilling or fracking, saying the issue should be regulated at the state level to avoid a patchwork of rules being created across multiple communities.
But Longmont Mayor Dennis Coombs said it’s clear that residents in his city and other communities nearby aren’t satisfied with the way the state has set up the rules. Despite a move by the commission earlier this year to increase setbacks for drilling operations from 350 feet to 500 feet, and requiring companies to further mitigate traffic, noise, fume and other drilling impacts, wariness over such an intensely industrial activity happening close to homes hasn’t subsided.
Coombs wonders why cities and towns aren’t being given the authority through their zoning powers to regulate oil and gas drilling like they would any other industrial activity.
“We wouldn’t allow an industrial dairy farm to set up in the middle of a residential area — why would the city allow a battery of 20 condensation tanks to locate in a neighborhood?” he asked.
Coombs said the issue has forced him and his colleagues on the council to figure out where their allegiances lie in terms of whether to give greater consideration to state law or the Longmont charter. He knows which way he leans.
“As an elected official, I’m supposed to do what my constituents are telling me to do,” he said. “I’m always going to put my city over the state, being the mayor.”
The Colorado Oil & Gas Association and the Colorado Oil and Gas Conservation Commission both declined Wednesday to comment for this story.
Cost a consideration in fight
According to a memo sent from the city staff to the Longmont City Council in October, the city has spent a little more than $55,000 fighting the Colorado Oil and Gas Conservation Commission lawsuit and more than $28,000 combating the industry suit.
The cost to fight expected litigation was one of the considerations behind the previous Lafayette City Council’s decision to pass a resolution opposing last month’s Question 300, which bans any new oil and gas drilling activity in the city.
City Attorney David Williamson said he doesn’t know what Lafayette’s response to the lawsuit will be — or what it might cost to fight it in court — as he hasn’t been served with a copy of the complaint yet.
Gary Wockner, Colorado program director of Washington, D.C.-based Clean Water Action, said now is the time to amend state law to give municipalities more say over what goes on inside their borders.
“Laws change as democracies evolve — this has become an issue of basic civil rights,” he said. “If ever there was a time when the state Supreme Court needed to change law, this is it.”
In the meantime, Wockner said local governments should not let the fear of an expensive legal process stop them from carrying out the will of the voters. He noted that the industry far outspent the anti-fracking movement in Colorado’s election last month and it netted oil and gas interests not a single victory.
This council may be more amenable to the idea of taking on the industry than the last one was — newly elected Councilwoman Merrily Mazza and Councilman Tom Dowling ran campaigns largely based on support for Question 300.
Anti-fracking effort is ‘failing’
But Simon Lomax, western director of Energy in Depth, said anti-fracking forces are “desperately” trying to score small victories in places like Lafayette and Broomfield because they have lost multiple battles at the national and state levels.
He points to the defeat earlier this year by California lawmakers of a bill that would have stopped energy companies from using hydraulic fracturing to get at underground deposits. Illinois, too, decided against a fracking ban in June, opting instead to pass a bill that places strict regulations on the practice.
“They’re going local because they have to, not because they want to,” he said of the anti-fracking forces.
Energy in Depth is the research arm of the Independent Petroleum Association of America.
Lomax also notes that several Cabinet members in the Obama administration, including former Interior Secretary and Colorado native Ken Salazar and former Energy Secretary Steven Chu, have attested to the safety of fracking.
“Even when critics of oil and gas in the Obama administration are saying how safe fracking is, you can see how far out on the fringes this agenda is and how badly it is failing,” Lomax said.
Contact Camera Staff Writer John Aguilar at 303-473-1389, firstname.lastname@example.org or twitter.com/abuvthefold. ___