The week of September 22, the Fort Collins, Colorado, City Council voted to appeal a decision rendered last month that struck down the city’s fracking ban. The North America Shale Blog previously covered that decision here.
In that August 2014 decision, a Larimer County District Court Judge ruled that Colorado’s 1951 Oil and Gas Conservation Act (“Act”) preempts the city’s five-year moratorium on fracking that was set to expire on August 5, 2018. The decision addressed the conflict between Article XX of the Colorado Constitution, which gives local governments “home-rule” powers—defined as “the full right to self-government” on local and municipal matters—and local attempts to regulate oil and gas activities. The court reasoned that Article XX does not permit a city to enact ordinances in areas of mixed state and local concern, or areas of statewide concern that intrude on state law, meaning that a local ordinance may be preempted where it would “conflict with the operation of a state statute.” The court then reasoned that the Act impliedly, though not expressly, preempted the city’s five-year fracking ban because it impeded the state’s interest in oil and gas development.
The Fort Collins resolution council voted 6-1 on Tuesday to direct the city’s interim attorney to appeal that decision to the Colorado Court of Appeals and to seek a stay pending appeal. If successful, a stay of the decision would leave the fracking ban in place pending the outcome of the appeal. Before the vote, several citizens, including a representative of the group Citizens for a Healthy Fort Collins, made public comments in support of the appeal. This appeal will make Fort Collins the second Colorado city to appeal a decision striking down a local fracking ban. Fort Collins follows Longmont, Colorado, where a coalition of environmental groups appealed a similar Boulder County District Court decision to the Colorado Court of Appeals in September.