The Colorado Supreme Court began hearing two cases that challenge Longmont’s fracking ban and Fort Collins’ fracking moratorium on Wednesday, Dec. 9.
The court heard oral arguments from both sides in both cases. The lawsuits were brought by the trade group Colorado Oil and Gas Association (COGA) and the state agency, Colorado Oil and Gas Conservation Commission (COGCC). Joining as interveners in the lawsuits for Longmont and Fort Collins are environmental groups Earthworks, Food & Water Watch, Sierra Club and Our Longmont.
Those groups held a rally, organized by Coloradans Against Fracking, on Wednesday morning before the hearings at the judicial center in Denver. Speakers from each of the intervening environmental groups spoke briefly, including Kaye Fissinger of Our Longmont. Fissinger said on Tuesday, Dec. 8 that the rally was meant to show public support for their side, but that the real work and indications of how the court might rule will come when the groups head inside to hear the hour-long oral arguments in each case.
“The city will be arguing the case for all of us,” Fissinger says, referring to the Longmont case. “[The Supreme Court] will have already had the chance to review it thoroughly before tomorrow. What is usually telling in any of this kind of thing is the questions that the justices ask, probably more so than what the parties to the case present.”
Though the oral arguments closed Wednesday, Fissinger thinks the court could take anywhere from one to nine months to make a decision on the cases.
Both the Fort Collins and Longmont cases have endured a winding road to get in front of the Supreme Court.
In 2012, Longmont voters approved a charter amendment to ban fracking. COGA immediately sued the city, and was soon joined by the COGCC, the state agency tasked with regulating oil and gas operations in Colorado. Earlier this year, a district court sided with the state, saying that Longmont’s ban interfered with the state’s ability to regulate oil and gas operations. Longmont appealed to the state Court of Appeals, claiming that the only court precedent for fracking jurisdiction came from 1992, when fracking technology was different and studies hadn’t yet been conducted to determine its impact.
“This is not your grandfather’s fracking,” Fissinger says of current hydraulic fracturing methods. “It’s a different world now. People are being impacted in so many more ways than they ever were before.”
In that 1992 case, Voss vs. Lundvall Bros. Inc., the court ruled that the state’s oil and gas interests are “sufficiently dominant to override a home-rule city’s imposition of a total ban on the drilling of any oil, gas or hydrocarbon wells within the city limits.”
Ostensibly heeding the complaints from Longmont and environmental groups that the Voss case is outdated, and because the Court of Appeals can’t set new legal precedent, they decided to bump the case up to the Supreme Court, which decided weeks later to hear both the Longmont and Fort Collins cases.
It was a similar case in Fort Collins, where others approved a five-year moratorium on fracking in 2013, which was overturned by a district judge and then appealed in 2014.
The cases are different, Fissinger and others note, though they are similar. The appellate court decided to send both to the Supreme Court because they “would appear to be the test cases for determining whether county and local governments may regulate or prohibit fracking,” the court wrote. It also noted it would generally be quicker and more cost efficient to hear both cases at once.
Fissinger says a ruling from the Supreme Court is likely to come on the quicker end of the one-to-nine month time frame that Our Longmont and others estimate. Her reasoning is that the state bumped up oral arguments to December, when many in the group of interveners believed they wouldn’t be heard under January or February.
The ideal outcome for the group would of course be a swift judgment in favor of Longmont’s and Fort Collins’ right to local control on issues of oil and gas extraction, but Fissinger says a more realistic goal would be for the Supreme Court to remand the cases back to a district court for an evidentiary hearing. Fissinger says the summary hearing that the initial district court gave the Longmont case did not provide enough information and cases in support of their cause, and so a broader look at evidence could set up a better foundation for success if it were then to go back to the Supreme Court.
Fissinger says she’s cautiously optimistic about the cases, as she was when the charter amendment went to a vote in Longmont in 2012.
“When we were at our campaign back in 2012, I just had the sense that we were really going to win this,” Fissinger says. “Of course I was marvelously pleased when we won by a landslide. It is not a partisan issue, it’s a people issue. We had support across the board, which we could tell from an analysis of the votes.
“This time I am encouraged by when the appellate court requested the Supreme Court take it, that they used the phrase in their request ‘profound economic and social consequences.’ Well, I don’t want to read too much into the word ‘social,’ but that’s the first time that I saw it presented that way and to me it felt like, ‘Oh, you’re starting to get it.’ This is more than just state preemption.”
On the other side, COGA told Boulder Weekly in a statement when the Supreme Court decided to take the case that, “In no way does this decision legitimize the pursuit of illegal bans. We look forward to when these cases are closed, and we can get back to how local control was meant — not by banning products from your city but working together to find reasonable solutions.”
