On Monday, September 21, The Supreme Court of Colorado agreed to decide whether localities can ban hydraulic fracturing operations or limit the storage of fracking waste products within their limits. The Court agreed to hear two cases, one involving a ban in the City of Longmont, and the other involving a ban in the City of Fort Collins. Both bans were overturned at the District Court level in 2014. A third Colorado city’s ban was also overturned in 2014.

In both Longmont and Fort Collins, citizens voted to ban hydraulic fracturing in oil and gas wells and storing fracturing waste products within their cities’ limits. Both bans were overturned because they impermissibly interfered with state law, namely, Colorado’s Oil and Gas Conservation Act. However, the judges that overturned these bans applied different legal tests to determine that the local regulations were impermissible. The ban in Longmont was overturned based on an application of an operational conflicts test, whereas the ban in Fort Collins was overturned based on an application of a preemption test (although the judge applied the operational conflicts test in the alternative).

Both preemption and operational conflicts tests are generally used throughout different states as methods of testing whether local regulations conflict with state law:

  • Preemption (or Field Preemption): the state asserts complete authority over a field of law to the exclusion of localities, and all local ordinances that attempt to regulate in this field are invalid.
  • Operational Conflict (or Conflict Preemption): the state asserts authority over a field of law through statewide regulation but leaves some room for local regulation; specific local regulations are invalid if they conflict with the means and/or purposes of the statewide regulation.

By agreeing to hear both the Longmont and Fort Collins cases, it appears that the Colorado Supreme Court will not only decide whether localities can ban hydraulic fracturing at a local level, but also decide which of the two aforementioned tests is the appropriate one to use. Critically, this means that the Colorado Supreme Court might decide whether there is any room for localities to regulate hydraulic fracturing.

Other states do not converge on which test should determine whether local regulations conflict with statewide oil and gas laws. For example, Ohio and West Virginia applied preemption tests to invalidate local fracking bans, whereas a federal court in New Mexico used an operational conflict analysis. The forthcoming Colorado Supreme Court decision will shake up the already tumultuous landscape of state preemption of oil and gas regulations.