Battles Continue Over Local Bans on Hydraulic Fracturing

In towns across America, hydraulic fracturing continues to be a hot-button issue, with municipalities in at least twelve states adopting measures to ban hydraulic fracturing altogether on a temporary or permanent basis.  Recent developments in Texas, California, and Colorado demonstrate that battles continue over local bans on hydraulic fracturing.

On July 16, 2014, the City Council of the City of Denton, Texas rejected a proposed ordinance that would have banned hydraulic fracturing within the city limits. The ordinance would have made it "unlawful for any person to engage in hydraulic fracturing within the corporate limits of the City."  Pursuant to the City Charter, the proposed ordinance will now be submitted to the voters in a citywide election in November.  If the ban passes, litigation is expected.  The City's existing moratorium on new drilling permits expires on September 9, 2014.

Litigation has already been filed in California over a similar ban.  On July 21, 2014, the Western State Petroleum Association filed a lawsuit in California state court challenging the City of Compton's authority to ban hydraulic fracturing both within and outside the City's jurisdictional boundaries.  The legal challenge arose after the City Council of the City of Compton adopted an ordinance in April that makes it "unlawful to use or cause to be used hydraulic fracturing, acidizing, or any other well stimulation treatment in conjunction with the production or extraction of oil, gas, or other hydrocarbon substances from any surface location in the City or from any site outside the City limits where the subsurface bottom hole is located in the City."  The lawsuit names the City's mayor and several City Council members, in addition to the City itself.

Finally, on July 24, 2014, a Colorado district court judge overturned the City of Longmont, Colorado's voter-approved ban on hydraulic fracturing, finding that the state's Oil and Gas Conservation Act preempted Longmont's ballot initiative.  In November 2012, the voters of Longmont passed an amendment to the city charter that bans hydraulic fracturing and the storage and disposal of hydraulic fracturing waste within the City.  Soon after, the Colorado Oil and Gas Association and the Colorado Oil and Gas Conservation Commission, the statewide agency with authority to regulate oil and gas activity in the State of Colorado, filed suit to overturn the ban.

In granting the plaintiffs' motion for summary judgment, the court found that the operational conflict between state law and the City's ban was obvious.  "The Commission permits hydraulic fracturing and Longmont prohibits it.  The Commission permits storage and disposal of hydraulic fracturing waste and Longmont prohibits it."  The court held that the City of Longmont's ban on hydraulic fracturing and the storage and disposal of hydraulic fracturing waste is invalid as preempted by the Colorado Oil and Gas Conservation Act.

It will be interesting to see if other Colorado courts follow the lead.  Similar lawsuits are currently pending against the City of Fort Collins, Colorado, which passed a five-year moratorium on hydraulic fracturing in November 2013, and the City of Lafayette, Colorado, which adopted an indefinite ban on oil and gas drilling in December 2013.