Colorado Constitution guarantees Home Rule

The following address was given at the February 21, 2011, Longmont City Council meeting.  A version was also given as testimony in support of Colorado House Bill 12-1277 before the Local Government Committee.

Colorado constitution

Colorado constitution

Article XX of the Colorado Constitution reserves both structural and functional home rule powers to municipalities and “the full right of self government in local and municipal matters” to citizens. Home rule is the embodiment of the principle that the best government is the one that is the closest to the people.  Article XX grants both general and specific powers to home rule municipalities, providing them greater flexibility when seeking solutions to local problems.  These powers allow home rule municipalities to shape such solutions to fit local needs. Home rule municipalities are not required to follow state statutes in matters of local and municipal concern and therefore enjoy freedom from state interference.

The statements just made appeared in an overview of Home Rule prepared by the Colorado Municipal League.  Longmont is a Home Rule municipality.

The Colorado Constitution was amended in 1902, over a century ago, to allow for home rule.  In 1912, a clarifying and strengthening amendment rewrote Section 6 of Article XX to specifically enumerate various municipal home rule powers.

The Colorado Oil and Gas Conservation Act was passed in 1951.  Its legislative declaration states that the Act is to “foster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.”

I submit to you that the administering agency, the Colorado Oil and Gas Conservative Commission, has failed and is continuing to fail in it directive.  I submit to you that it actions reflect consistent mission creep and are in fact unbalanced and consistently elevate the desires of the oil and gas industry over and above the requirements for public health, safety, and welfare, including the protection of the environment and wildlife resources.  I submit to you further than this lack of balance is irresponsible.

The Colorado Oil and Gas Conservative Act is a legislative enactment and, as such, there is no constitutional protection afforded the oil and gas industry by virtue of this act and that the legislation cannot override the constitutional guarantees of Article XX. If this was the legislature’s intent, it has had 60 years to amend the state constitution to rescind the right of municipal home rule.  It has not done so.  Nor is it the prerogative of the Colorado courts to effectively amend the constitution when the legislature and/or the voting public have failed to do so.

In light of the foregoing, regulation of the impacts of oil and gas operations by the COGCC are in addition to, not a replacement of, the powers granted to Home Rule municipalities by the Constitution of the State of Colorado.  Consequently, an extension of the moratorium and the adoption of the most stringent regulations are necessary and appropriate.

  2 comments for “Colorado Constitution guarantees Home Rule

  1. Gregory Iwan
    February 28, 2012 at 4:21 pm

    A damned fine analysis. We should be grateful for it. The only thing missing is a thorough analysis of case law within the state’s courts of record, in this regard. some of that may be “on point” (i.e., dealing with natural resource extraction), and some may not. But it would be worthwhile for the City Attorney to explore and publicize his brief of the issue. Perhaps someone is going to have to step forward and be the “guinea pig at the bench,” bringing an action to have the entire matter thoroughly adjudicated. It must be someone with “standing,” though, which generally means an “aggrieved” party. Anybody out there with ruined groundwater, atmosphere, etc.? If so, maybe a few hundred good souls will need to pony up $$ to pay for the necessary representation. And let me tell you, the resource industry may not have the brightest lights on the marquee IN their legal departments, but they can and do engage some truly legendary barristers from the outside. I’ve met and talked many times with some of these, and there are a dozen or so who could like Moses tap a rock and get a spring to flow. I’m not kidding. Of course, one who is licensed to practice in this state would be required. More than a few are so licensed in multiple states. Keep an eye peeled.

  2. Ann Kibbey
    February 28, 2012 at 4:28 pm

    Excellent article! Finally, a lucid explanation of what the law is, and is not, regarding fracking. No wonder the advocates of fracking have been so vague about the legal basis for their demands, not to mention the absurd idea that no community in Colorado can ban fracking. YES WE CAN!

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