On November 5, 2013, Colorado voters in Boulder, Fort Collins and Lafayette agreed to ban hydraulic fracturing within their communities for the next five years while, in Broomfield, a close vote to allow hydraulic fracturing (a difference of 13 votes) is being re-counted. In Boulder, 77% of the voters agreed to extend a one-year moratorium for five more years. In Fort Collins and Lafayette, the anti-fracking votes were 55% and 60% respectively. The voters may have been influenced by September’s devastating floods during which there was grave concern about contamination from escaped fracking wastewater.

  • Broomfield – Prohibits the use of hydraulic fracturing and open-pit storage of solid or liquid hydraulic fracturing waste for five years within the city and county of Broomfield.
  • Fort Collins – Moratorium on hydraulic fracturing and the storage of fracking waste products for five years “in order to fully study the impacts of this process on property values and human health…”
  • Boulder – Extend the moratorium on hydraulic fracturing for five years in order for studies on hydraulic fracturing to be completed and for “pending litigation involving the legal authority of Colorado home rule cities to regulate oil and gas exploration…”
  • Lafayette – Prohibits any corporation or any person using a corporation
  • “to engage in the extraction of gas or oil within the City of Lafayette, with the exception of wells active and producing at the time of this Charter Provision…;”
  • “to deposit, store or transport waste water, ‘produced’ water, ‘frack’ water or other materials or chemical or by-products used in or resulting from the extraction of gas or oil, within, upon or through the land, air or waters of the City of Lafayette;”
  • “to engage in the creation of fossil fuel…and delivery infrastructures, such as pipelines, processing facilities, compressors or storage and transportation facilities that support or facilitate industrial activities related to the extraction of natural gas and oil;”
  • from asserting “state or federal preemptive law against the people of the City of Lafayette, or to challenge or overturn municipal ordinances or Charter provisions.”

These four ballot propositions follow the precedent set by Longmont, Colorado in 2012 where voters decided to amend the city charter to ban hydraulic fracturing, open-pit storage and disposal of fracking waste within its borders. In December 2012, the Colorado Oil & Gas Association (COGA) sued Longmont to invalidate the ban; and in July 2013, the Colorado Oil and Gas Conservation Commission (COGCC) joined COGA in the lawsuit. For more information on this lawsuit, see latest analysis of fracking-related litigation attached to this blog.

As with Longmont, it is very likely that the bans in Boulder, Fort Collins and Lafayette will be challenged in the courts. In the past, Colorado courts have upheld moratoria which include an opportunity to study the impact of hydraulic fracturing on the community. Opponents of these bans may argue that state and local governments have already completed extensive studies about hydraulic fracturing and that moratoria are not needed. See Voss v. Lundvail Bros., Inc., 830 P.2d 1051 (Colo. 1992)(“ We hold that while the Oil and Gas Conservation Act does not totally preempt a home-rule city’s exercise of land-use authority over oil and gas development and operations within the territorial limits of the city, the statewide interest in the efficient development and production of oil and gas resources in a manner calculated to prevent waste, as well as in protecting the correlative rights of owners and producers in a common pool or source to a just and equitable share of the profits of production, prevents a home-rule city from exercising its land-use authority so as to totally ban the drilling of oil, gas, or hydrocarbon wells within the city.”)

The development of oil and gas within the state will be impacted by these bans even though these areas have less than 2% of the existing wells in Colorado.

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright’s Energy Practice Group.