Longmont fracking regulations bring the state vs. local government power debate to the surface

Posted: Nov 26, 2014

Overview:

An increase in viability for an oil and gas extraction method known as fracking has sparked a national debate. Proponents of the method hail it as bringing in the “Golden Age of Natural Gas” and claim that it will provide the solution to our dependence on foreign oil. Opponents of the method claim it is environmentally hazardous and can cause anything from flammable tap water to earthquakes. So far there is inconclusive research on the subject. (Read more about Fracking)

Recently the city of Longmont, CO decided to regulate fracking using their own standards by drafting an operator’s agreement that will regulate oil and gas operations in the city. Soon afterwards Longmont was sued by the state of Colorado. The suit over these standards, which conflict with the standards set by the state, has recently been in both the state and national spotlight.

No matter which side of the debate you land on regarding fracking, the recent lawsuit between Colorado and the city of Longmont begs the question: Who should have the final decision when it comes to fracking regulations?

Background on the Longmont Suit:

The city of Longmont is quickly becoming the poster child for city born-fracking regulations in Colorado.
It all started in December of this year, when Longmont decided to place a moratorium on new drilling permits because they wanted to update their regulations. This summer Longmont approved an Operator’s Agreement with TOP Operating (TOP), an oil and gas exploration and production company that works in the city.

The Operator’s Agreement was intended to apply not only to the sites noted in the agreement, but also to all sites in the city where TOP might conduct future oil and gas operations. The city also intends for these standards to be utilized for all oil and gas companies that would conduct oil and gas operations in the city.

The office of the Colorado Attorney General then sued the city of Longmont on July 30th of this year, the day the regulations began. The Attorney General stated that these new oil and gas regulations step on the state's authority to regulate the industry.

The Operator’s Agreement:

The Operator’s Agreement, which sets the new standards for Longmont’s oil and gas regulations, has several key components:

-- A maximum limit on oil and gas site size.
-- A 750-foot setback from occupied structures (existing or imminently planned).
-- The city can determine when and where multiple wells could be drilled from a single location, and whether horizontal drilling techniques are appropriate to use.
-- Wells must be set back from water sources such as streams, as well as from wildlife and wildlife habitat.
-- Energy companies must comply with the city's wildlife protections, as well as state and federal requirements.
-- Drilling in both existing and planned residential neighborhoods is banned.
-- Energy companies must inform the city when hazardous materials are transported on city streets.
-- Energy companies must use "low profile" tanks on well sites, or move them to a less visible area.
--Energy companies must go beyond the state's requirement for baseline water-quality testing and get the city's approval for a testing plan that lasts for five years.
-- The city can determine whether or not its rules conflict with the state's rules. If there is a conflict, the city can issue an energy company a waiver if they determine one is needed.

The Suit:

The state of Colorado is suing Longmont based on the claim that the city’s regulations overstep the jurisdiction of the Colorado Oil and Gas Conservation Commission (COGCC), the state’s regulatory committee. They are suing based on a number of aspects of the regulations.
In the lawsuit, the state laid out eight concerns. Two are among the best-known provisions in the new law. First, Colorado is concerned that the city can require water-quality monitoring until five years after the well is abandoned, if necessary. Second, surface drilling would be banned in residential areas. In both cases, the state argues that the rules are "pre-empted" by state authority.

Conclusion: 

There has always been a debate over the appropriate balance between the power of state and federal government. However, the rules adopted in Longmont instead highlight the tension between local officials and the COGCC, pushing the debate over the balance of power of state and local government into the spotlight.

Twenty years ago, the Colorado Supreme Court ruled that local jurisdictions cannot outright ban drilling. The result has been that cities can’t completely ban drilling but can regulate land use. Thus, it will be up to the courts to decide whether Longmont has created a ban, or is using their granted authority to regulate. When it comes to a decision like this, it is tough to know where to draw the line.

On the one hand the city has several valid arguments.

If the state is allowed to have too much power, cities would essentially lose their sovereignty. This takes away the power from those who are closest to citizens, and can arguably best determine their needs and how to address them.

Furthermore, local governments already have control over land use planning when it comes to things like mining. Generally speaking, mining can only be conducted on land approved for mining by local governments. Arguably oil and gas extraction should be regulated the same way. 

On the other hand the state has several valid arguments as well.

If individual cities were allowed to run without recognition of the rest of the state, there would be no continuity in regulations throughout the state. A patchwork of local regulations would inhibit almost all interstate activities, and this would have a detrimental impact on the state as a whole.

Also, the COGCC has much more expertise than Longmont’s local government officials. While local officials may be influenced by the news and their constituents, the COGCC ideally should be in the best position to decide what is best for the state and its citizens in regards to an industry it is charged with regulating.

However, in regards to the Longmont suit, Longmont should be allowed to decide how they want to regulate fracking, at least for the time being. There is much that is still unknown about fracking.  It would be different if there was a consensus on the effects of fracking on local environment. However, this debate is still ongoing.

When there is a consensus about a hot-button issue like fracking, then it does make sense to allow the state to set state regulations in order to keep balance in the state. However, until then, the people who actually live in Longmont, and who will have to deal with the consequences, should have the final say on how they want to regulate fracking locally.

~TK Keith

Copyright © 2014 Red Lodge Clearinghouse. All rights reserved.