Fracking ban court decision pushes conversation toward constitutional rights

National attention drawn to Colorado’s oil and gas preemption laws


The lawsuit to defend Longmont’s voterapproved fracking ban is moving on from the district court, where a judge issued a summary judgment against it, but a stay against fracking in Longmont while the case is appealed to a higher court. It may become increasingly clear as the case advances that the question at stake pits the oil and gas resources under the town against the basic constitutional rights of those who live in the town to determine their exposure to a risk to human health and environment more than half of the town’s voters have said they don’t want in their back yards. The environmental organizations that have signed on as intervenors aren’t going to be shy about framing the debate in terms of whether the state will really choose profits over people.

“I would welcome a knock-down drag-out fight in the courts that pits constitutional rights, mineral rights, along with the rights of the people,” says Kaye Fissinger, president of Our Health, Our Future, Our Longmont. “I would welcome that battle because the answer to that question is going to tell Coloradans and probably to some extent the rest of the nation where our government really is on this, and if they come down against the people, faith in government will tank. It’s close to that already, but that’ll be like a nail in the coffin.”

The lung cancer survivor living with COPD, who has three greatgrandbabies for whom she’d like to leave the world a better place, insists, “We matter.”

After 60 percent of Longmont voters approved a ban on fracking as an addition to the city charter in November 2012, the Colorado Oil and Gas Association and Colorado Oil and Gas Conservation Commission, with Top Operating Co. as an intervenor, filed a lawsuit against the city and motioned for a summary judgment in the matter. The word Fissinger and others use to describe the Boulder County District Court judge’s summary judgment issued July 24 that found state law trumps the local initiative to ban fracking is “disappointed.” Disappointed that they didn’t get an evidentiary hearing where their evidence of the threat to human health and the environment by fracking, and the ability of oil and gas companies, including Top, to access those resources through other methods than fracking, could be presented in full and that the judge’s decision referred to a pair of 20-year-old Colorado Supreme Court decisions that hinge on a law that’s since been revised by the state legislature.

But even in the face of a court decision that overturned their ban, they’ve found a few seeds of hope to fuel the ongoing fight: that the judge essentially handed the decision over to the appeals court to decide, and issued a stay on fracking while the case moves through that appeals court, a process that is expected to take more than a year.

Judge D.D. Mallard issued her decision based on two Colorado Supreme Court cases decided in 1992, including an attempt by the City of Greeley to ban oil and gas development and one from La Plata County that required oil and gas operators to comply with an application process. The Court found, with the Greeley ban, that there could be local control of oil and gas operations “if such regulations do not frustrate and can be harmonized with the development and production of oil and gas in a manner consistent with the stated goals of the Oil and Gas Conservation Act.”

“Colorado is a bit of an outlier because of that decision, and I think one of the points we were making in defending Longmont’s voter ban on hydraulic fracturing was that times really have changed significantly since the Supreme Court ruled 20 years ago. Courts do change their minds sometimes when the times change, the law has to adapt, so I think we’re hopeful that the Supreme Court will see that larger landscape where Colorado’s actually a little bit out of step with other states,” says Bruce Baizel, energy program director for Earthworks, one of the environmental organizations signed on as an intervenor for the lawsuit, meaning they can continue the court battle even if the City of Longmont were to decide not to appeal.

“Even Texas cities have more ability to enact stricter ordinances in a state, particularly home rule cities in Texas,” Baizel says. “[In New York] the statute wasn’t all that different than the Colorado statute, but there just wasn’t that single decision saying you can’t ban it. California you have a lot of authority for local municipalities and counties to make land use type ordinances that may affect whether or not oil and gas, which is an industrial activity, can happen.”

The court precedent from 1992 has been used to overturn local government attempts including an effort from Summit County to ban the use of toxic or acidic chemicals, such as cyanide in mineral processing and an effort from Black Hawk to ban bicycles.

But a lot has changed since 1992, including both the Colorado Oil and Gas Conservation Act, which was revised in 2011, and oil and gas development in the state.

“We believe it’s time for a fresh look at those dated rulings, and those rulings have been used politically by the oil and gas industry as if it gives carte blanche to them, and those rulings do not actually say that,” Fissinger says.

Mallard’s written order acknowledges that while fracking has been used in Colorado since the 1970s, it has changed dramatically over the decades. Now, instead of a single vertically drilled well that was common in the 1990s, well pads have many wells drilled horizontally into different formations and have moved closer to populated areas.

“There was nothing like these large, long horizontal well bores that they’re doing now, when the Supreme Court handled their case in the early ’90s, they were all vertical wells, so you had to have your drill rig right over where you wanted to reach the targeted oil or gas, and now that’s no longer necessary,” Baizel says. “So the whole basis for the court’s decision technically no longer exists. There are some two-mile horizontal laterals that are functioning now, and that was never possible before, so part of it is, yeah, technology and the industry’s ability to get to these difficult places has increased tremendously since the court weighed in, so we think it would make sense that the law would reflect that change.”

The case from La Plata County had also found that oil and gas production was “closely tied to well location,” but that’s no longer the case. “I always have to chuckle when people say fracking has been going on since 1949 — that’s the equivalent of saying we’ve been driving the same car since the Model T came out in 1905. It’s a ridiculous comparison,” says Sam Schabacker, Food & Water Watch western region director, another intervener for the lawsuit. “We’re talking about slick water horizontal fracking, multiple wells per pad. … It’s completely different, and we’re hopeful that in the higher court we’re going to have the opportunity to have that discussion and that the judges will be willing to engage in a conversation around how fracking is fundamentally different now and why it is essential to examine those differences and the impacts that those differences have on health, safety and property, how it’s so much more detrimental now and why this ban is perfectly consistent with the state’s interest.”

Colorado’s legislation, including the act cited in those decisions, has also been revised to add allowances for public health, safety and the environment, says Kevin Lynch, Environmental Law Clinic professor at the University of Denver. Courts interpret what the legislature has said — and if that’s changed, so should the court ruling.

“We feel like Judge Mallard got the law wrong. The law has changed since 1992. … We’re not just stuck in the ’90s,” he says. “Now [oil and gas development] has to be done, according to the state legislature, in a way that protects public health safety and welfare, and that’s why all we introduced in the evidence about the health effects, the property value effects, the safety effects of fracking — why that is all relevant and why it’s particularly concerning that Judge Mallard was particularly dismissive of all that evidence.”

For constitutional rights to health, happiness and personal property to have any meaning, he adds, “states can’t preempt local governments from sensible restrictions on harmful industrial practices in their communities.”

Mallard wrote that she wasn’t in a position to disagree with any of the exhibits supporting the position that fracking causes serious health, safety and environmental risks, but that overturning the court precedent was above her paygrade.

“The Court recognizes that some of the case law described here may have been developed at a time when public policy strongly favored the development of mineral resources,” her judgment reads. “Longmont and the environmental groups, the Defendant- Intervenors, are essentially asking this Court to establish a public policy that favors protection from health, safety and environmental risks over the development of mineral resources. Whether public policy should be changed in that matter is a question for the legislature or a different court.”

The concerns about risks to health and safety, in other words, were not sufficient to “devalue the State’s interest” in the mineral resources in Longmont.

“The Oil and Gas Conservation Act used to say the state’s interest to promote efficient production of oil and gas resources and now it says responsible, balanced production that protects health safety and welfare, and we’ve argued already to Judge Mallard and think it has a sound basis in existing law that the state’s interest does put public health safety and welfare ahead of production, and that if production can’t be done in a way that protects health, safety and welfare that it should not be allowed,” Lynch says. “We’ll continue to make that argument to the appellate courts and perhaps they won’t feel as constrained by the findings in 1992 from the Colorado Supreme Court with what the state’s interest was then.”

He adds that Judge Mallard’s misapplied the summary judgment standard, giving more credence to the evidence brought forward by the industry and the state and being dismissive of the evidence from the City of Longmont and the environmental groups signed to the case as intervenors, which includes the Sierra Club, Our Longmont, Earthworks and Food and Water Watch. The summary judgment decision means the case moves to appellate courts without a fully developed evidentiary record — and loaded with concerns, Lynch adds, that the precedental cases referenced should have applied because they related to full bans of oil and gas development, and Longmont’s ban is only on fracking. Lynch, who has undertaken the case pro bono, provided expert testimony that showed oil and gas could be developed without fracking, and the plaintiffs shifted their case to discontinue arguing for that point.

“She’s supposed to resolve all benefits of doubt as to whether there are any disputes of fact in favor of the nonmoving party, which was the city and us,” Lynch says. “It really was rather surprising that she took [the state’s] assertions at face value, even though we’d introduced depostition testimony showing that they didn’t have anything to back up their conclusory statements and she utterly ignored the evidence that our side submitted regarding alternatives to fracking.”

The Colorado Oil and Gas Association celebrated the decision of the judge to uphold their motion for summary judgment as reaffirming that local governments cannot ban fracking, and that oil and gas development is a matter of statewide, rather than local, interest.

“[The Colorado Oil and Gas Association] values the important role of local governments in oil and gas oversight, and will continue to work with our communities to ensure that our 150-year history of co-existence continues harmoniously,” Tisha Schuller, president and CEO of the Colorado Oil and Gas Association, said in a statement. “The ruling today is not just a win for the energy industry but for the people of Colorado. The more than two dozen communities that have invested in legal regulations, memoranda of understanding, and ongoing stakeholder dialogues to create responsible energy development also get a win. The decision demonstrates that the rule of law will prevail in how Colorado oversees one of the most important industries in this state.”

Not all the people see Judge Mallard’s decision to overturn the Longmont ban based in part on the 1992 Greeley decision as the “win” for the people of Colorado that Schuller claims it to be.

On Monday, July 28, more than 100 people packed the hearing room of the COGCC meeting being held in Greeley. For nearly three hours, one Greeley resident after another described how their quality of life, property values and health are being destroyed by the oil and gas drilling in their community.

The owner of three low income apartment buildings showed his frustration claiming that he wasn’t even notified that a giant multi-well industrial platform was being constructed a mere 360 feet from his buildings. He worried for the safety of his tenants. One parent after another complained that the plans to drill numerous wells next to the playground for elementary students at Greeley’s Frontier Academy are absolutely dangerous to their children and still completely inappropriate even though the original plan for 67 wells has recently been scaled back to 19. Still others described how the industry had destroyed the charm of downtown Greeley by sticking a massive 32-well site only a few feet away from the city center. The horror stories went on and on for hours. And it is estimated that the number of wells drilled in Greeley neighborhoods will triple in the next few years. This is the precedent that the 1992 cases have set.

Defendants of the Longmont fracking ban have 49 days from the judgment’s issue to make an appeal to a higher court.

“This whole battle has been actually horrendous because not only do we have to battle the wealthiest industry probably on earth, we have to battle our state, our governor, our legislature,” Fissinger says. “It shouldn’t have to be that way.”

The message, she says, is one that challenges the faith in government to protect its people.

“We need to ask our higher courts,  the appellate court and the Supreme Court, if it’s necessary to go that far, do we matter at all? Does our health, safety and welfare matter at all? Or are we always going to be considered an alsoran?” Fissinger says. “There’s just something very seriously wrong with that picture, and I would hope that the higher courts decide to take a fresh look and genuinely consider the welfare of the people. That’s never really been litigated before.”

Colorado communities aren’t alone in working to ban fracking. But recent victories in other state’s for fracking bans, including the June 30 decision from New York to allow towns to effectively ban fracking by using zoning laws to ban that kind of industrial activity, are, at best, political victories for the campaigns here.

What sets Colorado apart is the preemptive doctrine that’s already in place — preemptive doctrine that says that the state law trumps local law, particularly in oil and gas development. Longmont’s lawsuit is an attempt to test that doctrine and potentially overturn it, Schabacker says.

“Colorado is being watched so closely by the nation, and the industry here in Colorado has already said in print that this will be a domino effect across the nation if the ballot measures and our lawsuits were to succeed,” Fissinger says.

Helen Slottje, a New York lawyer who came up with the legal theory of using zoning laws to ban fracking that New York’s highest court recently approved, says landing on that loophole in laws that said local governments could simply ban an industry they weren’t allowed to regulate was really an “emperor has no clothes moment.”

The efficacy of her idea of using zoning laws varies state to state, she says, but “the general concept that this particular industry, the oil and gas industry, should not be entitled to a wholesale exemption from zoning laws really should be the case everywhere. … Every other industry has siting requirements. You don’t put a nuclear power plant in the middle of a residential neighborhood, you don’t put a Walmart in the middle of residential neighborhood.”

The conversation about fracking really gets at the fundamental constitutional principles that apply in all states, says Slottje, whose legal work was recognized with a 2014 Goldman Environmental Prize for grassroots environmental advocacy work. The questions that will be central to this debate are ones of right to due process and equal protection.

“People talk about property rights as a bundle of sticks, that’s one of the main metaphors for property rights,” Slottje says. “Well, you don’t have the right to take one of the sticks out of your bundle and whack your neighbor over the head. You just don’t have the right to hurt people. So on those grounds, I think that people in all states have or should have the right to not be subject to having this next door to their houses.”

“More than anything, I think what distresses me about this, even though [the judge] made reference to I believe as she put it ‘sincerely held beliefs’ about health safety and welfare — these are more than just ‘beliefs,’ as in faith,” Fissinger says. “The evidence is there and it’s mounting daily that there are downsides to this.”

“It’s a real problem with our legal system that these requirements for sort of scientific proof above and beyond,” Slottje says. It’s like arguing the case that smoking causes cancer — it makes sense that inhaling tobacco covered in chemicals could make you sick, but proving that in court was difficult.

“There’s things that we know that happen but we don’t know how they happen, we just know that they happen, and that really seems to be the case with fracking,” she says. “You see sick people, you see things that occur that weren’t occurring before fracking that are occurring after fracking, sort of a common sense understanding would tell you yeah, those two things are connected, but they’re very difficult because the science isn’t there and so many people who are harmed are forced to sign nondisclosure agreements so that doesn’t become part of the body of information that’s out there for society to know.”

It’s clear that this court decision is simply a battle lost in an ongoing war — if it can even truly be called a loss, given the judge’s decision to issue a stay on oil and gas development while the case is appealed to higher courts where judges might feel less bound to the precedents Judge Mallard saw as above her pay grade to overturn.

“The wave of local ordinances either banning or restricting has not peaked yet, and doesn’t show any signs of peaking. I’m getting calls from Arizona, Louisiana, a bunch in California, there’s starting to be stuff in Nevada,” says Baizel, of Earthworks. “I think this debate about who can best control, or what’s the mix of controls, is going to get a lot bigger before it actually gets resolved, so in that sense, Colorado is sort of leading the way on the debate. It’s a very real debate in this election cycle.”


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