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Colorado Supreme Court to Decide if Cities Can Ban Hydraulic Fracturing

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On Monday, September 21, the Colorado Supreme Court agreed to hear two cases that will determine whether municipalities may impose ordinances prohibiting the use of hydraulic fracturing.

In November 2012, Longmont citizens passed a voter-initiated ban on the practice of hydraulic fracturing (“fracing”). Similarly in 2012, voters in the City of Fort Collins approved an amendment to the city code prohibiting the “use of hydraulic fracturing to extract oil, gas or other hydrocarbons” within the city of Fort Collins for the subsequent five years “in order to fully study the impacts of this process on property values and human health.” Subsequent to the enacting of these local measures, the Colorado Oil and Gas Association (“COGA”) filed complaints against both cities alleging that the bans attempted to regulate technical aspects of oil and gas operations reserved to the state, and that the prohibition on fracing operates as an illegal, de facto ban on oil and gas drilling.

Last summer, the oil and gas industry seemed to gain early ground in the battle when the district court in both cases granted summary judgment in favor of COGA, overturning the bans on the basis that regulation of fracing is under the purview of the state’s regulatory body—the Colorado Oil and Gas Conservation Commission. However, the municipalities appealed and in August, the Colorado Court of Appeals requested that the Colorado Supreme Court accept jurisdiction over both matters. The case before the Colorado Supreme Court may be heard as early as November, although a decision would take much longer, and would decide whether municipalities can impose bans against fracing

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