Can your town ban fracking? Depends on the state

Anti-fracking activists in Colorado are shifting their focus to statewide ballot initiatives later this year, after a district judge overturned Thursday a voter-approved local ban on hydraulic fracturing, a controversial oil and gas extraction technique.

The ruling is a win for the region’s supporters of expanded energy production, but both sides are gearing up for a debate that extends well beyond Colorado’s borders.

Across the country – from California to New York, and Ohio to Texas – state courts are determining whether or not local fracking bans are legitimate. Thursday’s ruling underscores the bind that can arise when a state rules one way on fracking, and a city or town leans the other way. Traditionally, permitting and regulating of oil and gas development occur at the state level in the US, meaning the feasibility of a fracking ban can vary drastically across state lines. It becomes even more of an issue as the US shale boom spreads closer to suburban – and even urban – areas, where residents have no history with energy extraction.

“These bans are springing up all over the place,” says David Spence, a professor of law, politics, and regulation at the University of Texas at Austin, in a telephone interview Friday. “All of them will bring the same kinds of legal challenges.”

On Thursday, Judge D.D. Mallard ruled in favor of an oil and gas commission challenge to a fracking ban in Longmont, Colo., arguing that the city’s all-out fracking ban “prevents the efficient development and production of oil and gas resources.” That conflicts with Colorado’s state regulations governing oil and gas development, according to the ruling.

“While the Court appreciates the Longmont citizens’ sincerely-held beliefs about risks to their health and safety, the Court does not find this is sufficient to completely devalue the State’s interest, thereby making the matter one of purely local interest,” Mallard wrote. “Instead, the Court finds this matter of mixed local and state interest.”

A similar tension has arisen in Ohio, where local fracking restrictions have been struck down by state courts, Mr. Spence says, and others are working their way through court. In Louisiana, state regulations take such precedence that they stymie hopes of local bans, according to Spence.

Local fracking opponents confront fewer challenges in places like New York, where the state government has imposed a fracking moratorium to study the controversial drilling practice. Both New York and Pennsylvania have upheld local fracking bans in court.

Although Thursday’s decision in Colorado could be appealed, the ruling suggests other local bans are vulnerable.   

“It signals that the only way relief [for fracking opponents] will be forthcoming is through a constitutional amendment,” says Bill Brady, an adjunct professor at the University of Denver Sturm College of Law, in a telephone interview Friday.

Two Colorado ballot initiatives supported by Rep. Jared Polis (D) of Boulder would do just that, amending the constitution to restrict or challenge – though not ban – fracking. One measure would require drilling rigs be set back 2,000 feet from homes. The other would insert an “environmental bill of rights” into the state constitution.

Coloradans for Safe and Clean Energy, a Polis-backed environmental group, says it has collected enough signatures to get the two initiatives on the November ballot in Colorado.

“Collecting nearly 100,000 signatures on each measure in just five weeks time proves the overwhelming support amongst Colorado voters for commonsense protections against roughshod fracking,” Mara Sheldon, a spokesperson for Coloradans for Safe and Clean Energy, said in a statement Thursday.

The oil and gas industry is also turning its attention to the ballot initiatives, making the case that a statewide fracking ban would increase US carbon emissions and hurt local economies. In 2012, the oil and gas industry contributed $29.6 billion to Colorado’s economy through direct and indirect activities, according to an industry-commissioned study by the University of Colorado Boulder.

“[E]fforts to lock inflexible regulations into the state constitution will be a disaster for the economy, private property owners and the local communities,” says Karen Crummy, a spokesperson for an industry-backed group Protecting Colorado’s Environment, Economy and Energy Independence.