Fracking is alive and well in Colorado. This past Monday, the Colorado Supreme Court delivered a unanimous and resounding victory to property-rights owners in two important hydrofracking cases. Joining states like Texas, Oklahoma, and Ohio, the Centennial State determined that local activism must give way to state law when it comes to permitting the fracking of oil and gas wells.
A 2012 vote in Longmont (pop. 90,000+) had banned fracking there by adding Article XVI to the municipality’s home-rule charter, and a 2013 vote in Fort Collins (pop. 156,000+) adopted a city ordinance that imposed a five-year moratorium on fracking or storing fracking waste in city limits. The state’s oil and gas association took both cities to court, prevailing against each in 2014. Longmont and Fort Collins appealed to the Colorado Court of Appeals, which transferred the cases to the state supreme court. Although this maneuver sped the cases to final resolution, the local laws remained in place during the pendency of the appeal, so half of the Fort Collins moratorium already elapsed before the supreme court could overturn it for good.
In both City of Longmont et al. v. Colorado Oil and Gas Ass’n et al. and in City of Fort Collins v. Colorado Oil and Gas Ass’n, Justice Gabriel’s opinion for the court affirmed the lower-court decisions, ruling that fracking implicates mixed state and local concerns, which makes it subject to preemption by state law. The high court then held as a matter of law that because each city’s anti-fracking measures operationally conflict with state law—which allows fracking—they are preempted. This reasoning deviated from the two lower courts, which had held that state law impliedly preempted the local measures, but the resulting victory for fracking is the same under either preemption approach.
Furthermore, in distinguishing Colorado law from a contrary ruling in Pennsylvania, the justices noted that “[t]he Colorado Constitution does not include … nor have we seen, any applicable Colorado case law adopting the public trust doctrine in this state.” (Longmont, slip op. at 28). Hence, the ruling protects private property not only from local fracking bans and moratoria, but also from efforts to invoke the public-trust doctrine to prevent drilling.
As the justices were quick to point out, the controversy before them did not involve the question of whether to believe “[p]roponents [who] tout the economic advantages of extracting previously inaccessible oil, gas, and other hydrocarbons … [or] opponents [who] warn of health risks and damage to the environment.” (Longmont, slip op. at 4). Yet it is no mere coincidence that groups like Sierra Club, Earthworks, and Food and Water Watch intervened as defendants to support the City of Longmont’s defense. The Colorado Supreme Court deserves praise for keeping its collective eye on the preemption ball and not succumbing to political pressure to intervene against fracking.
Special-interest environmental groups overstate the risk of groundwater contamination from fracking in order to stir up opposition to a drilling practice that the U.S. Environmental Protection Agency (among others) has quietly found to be safe. The Colorado Supreme Court’s ruling against there being a public-trust doctrine in the state curtails the ability of these activist groups to meddle in Colorado even more than the preemption ruling does, so they may well wish they had never raised the issue.
The local laws overturned this week were just the latest among multiple, concerted (but thankfully, thus far, impotent) efforts to stop fracking. Despite a safety track record dating back to 1949, fracking has been the target of increased opposition in the past decade precisely because it works. Fracking’s widespread adoption in combination with horizontal drilling has been so spectacularly successful that the United States has become the world leader in natural gas production and now rivals even Saudi Arabia for oil production.
Environmentalists who dislike the air pollution that can accompany burning hydrocarbon-based fuels would like to prevent oil from even being extracted, so they continue to spread disinformation that finds fault with fracking. When Fort Collins put its moratorium in place, according to its own terms, it did so in part “to fully study the impacts of this process on property values and human health…” But the impact of fracking on human health, at least, is widely studied, well understood, and innocuous. These health statements thus represent misplaced anxiety at best—or a ruse to justify naked prohibition.
Indeed, if fracking were not safe, Colorado state law would not permit the practice. The Colorado Oil and Gas Conservation Act “permit[s] each oil and gas pool in Colorado to produce up to its maximum efficient rate of production, subject to the prevention of waste, consistent with the protection of public, health, safety, and welfare, including protection of the environment and wildlife resources … .” Sec. 34-60-102(1)(b), Colorado Revised Statutes (2015) (emphasis added).
By joining other states in overturning local fracking bans, and protecting private-property rights in the process, the Colorado Supreme Court has demonstrated that cooler heads can still prevail when it comes to extracting natural resources safely—at least outside of New York. Despite numerous efforts to demonize the practice, as well as recently publicized efforts to downplay the results of an objective, publicly-funded academic study at the University of Cincinnati that supported its safety, fracking continues to play a crucial role in securing reliable, domestic energy independence.
Also published by Forbes.com on WLF’s contributor page.