Oil and Gas Law Unsettled

Colorado constitutionIn a letter to the City of Longmont, the Colorado Oil and Gas Association insists that the citizens of Longmont do not have the right to protect their property, safety and health from the negative impacts of hydraulic fracking. Industry’s refusal to respect these inalienable rights is premised on their insistence that we must instead “respect the primary regulatory authority vested in the Colorado Oil and Gas Conservation Commission (COGCC).”

Our Health, Our Future, Our Longmont believes that the Colorado Constitution gives all citizens the right to protect their property and live safe, healthy lives.  It is the authority to which all of Colorado’s statutes must be subordinated and thus it does not give the oil and gas industry the freedom to damage our property values, endanger our families or pollute our air and water.

Despite protestations to the contrary, case law covering the interaction between the COGCC, Colorado’s designated agency for oil and gas development, and local governments is unsettled law.  Colorado case law is a mixture of rulings that apply to dissimilar forms of municipal government. Such disparate rulings have been cobbled together and used by the oil and gas industry and the COGCC to intimidate municipalities from exercising their responsibilities to protect their citizens and their communities.

Municipal government comes in many forms, among which are counties, home rule cities and statutory towns and cities, each of which allows for different degrees of authority and independence. Among the powers afforded home-rule cities like Longmont is the authority to regulate the use of land on the basis of its impact on the community or surrounding areas and to regulate the use of land so as to provide for its orderly use and the protection of the environment in a manner consistent with constitutional rights.

The “findings” included in Our Health, Our Future, Our Longmont’s proposed amendment to Longmont’s city charter identifies another constitutional protection.  “The Colorado Constitution confers on all individuals in the state, including the citizens of Longmont, certain inalienable rights, including ‘the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property, and of seeking and obtaining their safety and happiness,’ Color. Const. Art. II, Sec 3.”

Hydraulic fracturing (fracking) violates these constitutional rights by threatening our health, endangering our children, diminishing property values and contaminating our water and air.

Frequently cited case law has not ruled on the constitutional protections afforded Colorado citizens but instead has focused on the statutory authority delegated to the COGCC.  Also, new technology and the effects of multi-well pads using directional high volume fracturing have not been considered in past case law.

The COGCC, through the Attorney General’s Office, and the oil and gas industry have been seeking a court ruling on complete preemption of municipal control for years.  The courts have refused this interpretation.  As recently as the 2012 Colorado legislative session, a senator sponsored a bill (SB-88) that would have accomplished that objective for the oil and gas industry.  The bill was killed in committee.

The arguments that are being put forth by the industry and COGCC are intended to intimidate local governments and dissuade Colorado citizens from asserting and claiming their Constitutional rights.  Such arguments are inaccurate and blatantly indicate that the issues surrounding oil and gas drilling in Colorado have not been legally settled.

Neither the courts nor the COGCC have adequately addressed the Oil and Gas Act’s legislative mandate 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” (emphasis added), the first and presumably overarching restriction on all other directives contained within the Act.

The proposed Longmont charter amendment seeks to restore constitutional and statutory protections for our “health, safety, and welfare.”  It does not seek to ban all drilling for oil and gas within the Longmont city limits, but to ban only one specific, particularly harmful extraction method, hydraulic fracturing, in order to guarantee and preserve constitutionally protected individual rights to health, safety and well-being.

  1 comment for “Oil and Gas Law Unsettled

  1. FRED BATES
    July 19, 2012 at 2:52 pm

    It strikes me, if the operators would tell everyone exactly what’s in their fluids and how much they use (and recover), then maybe we’d have the beginnings of a little peace and accommodation. But when the governor of the state comes down so plainly on the side of “fracking,” I think the wall around the industry’s practices is getting higher. And the gov is a Democrat?! You can take the boy out of the country . . .

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