Environmental groups appeal Boulder District Court ruling against reinstating Longmont fracking ban – Longmont Times-Call

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A pair of environmental groups is appealing a Boulder District Court judge’s November ruling against reinstating Longmont’s voter-approved ban on hydraulic fracturing for oil and gas deposits within the city limits.

Colorado Rising for Communities notified the Boulder District Court and the Colorado Court of Appeals last week that it was appealing District Judge Judith LaBuda’s ruling, Joe Salazar, Colorado Rising’s executive director, said Monday.

Colorado Rising for Communities is pursuing the lawsuit and the appeal on behalf of two environmental activist groups — Our Health, Our Future, Our Longmont, and Food & Water Watch. Those groups’ efforts seek the courts’ declaration that local oil and gas fracking bans, such as the one Longmont voters approved in 2012 that was later struck down by the Colorado Supreme Court, are no longer in conflict with the Colorado Oil and Gas Conservation Act.

In 2016, the Colorado Supreme Court blocked enforcement of Longmont’s ban on hydraulic fracturing, the process of injecting sand, water and chemicals to free up deep underground oil and gas deposits, within the city’s boundaries. The state’s high court ruled that Longmont’s prohibition interfered with state regulations and the state’s interest in oil and gas development.

However, Our Health, Our Future, Our Longmont and Food & Water Watch argued in their lawsuit that increased local-control authority to regulate oil and gas activities contained in Senate Bill 19-181 meant that the fracking ban voters added to Longmont’s municipal charter in 2012 is no longer out of compliance with state law and should be enforced.

Our Health, Our Future, Our Longmont’s and Food & Water Watch’s lawsuit named the city of Longmont, the state of Colorado, and the Colorado Oil and Gas Conservation Commission as defendants in the lawsuit. The Colorado Oil and Gas Association, an industry trade association, intervened on the defendants’ side of the case, opposing the plaintiffs’ efforts to reinstate the fracking ban.

City officials said they’d received notice Friday of the groups’ Colorado Court of Appeals filing.

Next in the process will be the filing of legal briefs with the Court of Appeals. The appellants — Food & Water Watch and Our Health, Our Future, Our Longmont — must file an opening brief on or before Jan. 29. The defendants — Longmont, the state, and the Colorado Oil and Gas Conservation Commission — as well as the intervenor, the Colorado Oil and Gas Association, will then have  35 days to file answering briefs, if they choose to do so.

Boulder County District Judge LaBuda’s Nov. 1 ruling stated that Longmont’s municipal home-rule charter fracking ban “is in operational conflict with state law” and said in another passage that the city charter’s fracking waste storage and disposal ban also “is in operational conflict with state law.”

LaBuda upheld arguments made by the Colorado Oil and Gas Association. She wrote that that industry group had said in its court filing that Longmont’s prohibition “continues to be unenforceable even after the passage of SB 19-181” and that Longmont’s charter amendment “remains in operational conflict with” the Colorado Oil and Gas Conservation Act and that the city’s ban was thus “preempted by state law.”

LaBuda wrote that the Colorado Oil and Gas Association, in its filing, contended that the SB 181-amended Oil and Gas Conservation Act’s grants of power to local governments “is limited to certain matters affecting surface impacts of oil and gas operations” but that state law “explicitly grants authority for subsurface oil and gas regulation to the Colorado Oil and Gas Conservation Commission.”

She said the Oil and Gas Association argued that Longmont’s home-rule charter amendment “continues to materially impede state law because it prohibits fracking, a subsurface activity.”

However, Salazar said in November that LaBuda’s ruling “clearly misread the intent of the Legislature when issuing its decision in this case. It’s almost as though the court is in disbelief that the law significantly changed in 2019.”

Salazar said upon the announcement of the district court judge’s decision: “Municipalities were expressly granted authority to regulate in the interest of public health and safety, including regulating the surface impacts of hydraulic fracturing.”

The municipal charter provision at issue states: “It shall hereby be the policy of the City of Longmont that it is prohibited to use hydraulic fracturing to extract oil, gas, or other hydrocarbons within the City of Longmont. In addition, within the City of Longmont, it is prohibited to store in open pits or dispose of solid or liquid wastes created in connection with the hydraulic fracturing process, including but not limited to flowback or produced wastewater and brine.”

During the course of the lawsuit seeking local enforcement of that charter provision, Longmont has maintained a neutral response on the primary issue of whether the fracking ban is preempted by state law, leaving that issue to the other parties in the lawsuit — the state, the Colorado Oil and Gas Conservation Commission and the Colorado Oil and Gas Association — to argue and the courts to decide.

This content was originally published here.

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