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CO Congressman Polis to Oil & Gas Industry: Please Stop Suing Our Towns

Daniel Raichel

Posted December 11, 2013 in Environmental Justice, Health and the Environment

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Last week, in a letter to the Colorado Oil and Gas Association (a trade association composed of Colorado companies working in or with the oil and gas industry, also known as “COGA”), U.S. Congressman Jared Polis had a simple message: “Please stop suing the communities I represent.” 

The letter comes after a recent string of electoral losses for the oil and gas industry in Colorado communities. Although COGA spent nearly a million dollars in the November elections attempting to defeat local ballot measures in four cities either banning or temporarily halting fracking—Boulder, Broomfield, Fort Collins, and Lafayette—the measures passed in all four (including Broomfield, where the results of recount recently affirmed the passage of a 5-year moratorium on fracking).

Hands Off Our Community.jpg

Photo via Erie Rising/Flickr

Now, instead of trying to buy popular support, COGA, has turned to a different tactic: suing the cities that voted for these measures. COGA has issued lawsuits against the cities of Fort Collins and Lafayette, and has now threatened to sue the City of Broomfield as well.  In addition, COGA has already been involved in two separate lawsuits against the City of Longmont for its passage of a fracking ban. 

Collectively, these lawsuits attempt to override the majority vote of local residents in an area of law that is far from clear. As in other shale-bearing states like Ohio, Pennsylvania, and New York, the extent to which municipalities can exercise traditional zoning and home rule powers with respect to drilling has not yet been fully fleshed out by the state's highest court. While preventing complete bans on all oil and gas drilling, the Colorado Supreme Court has held that Colorado municipalities are allowed to pass laws related to “various aspects” of drilling—which perhaps includes the recent bans and moratoriums on the technique of fracking.

The letter from Congressman Polis highlights that, ultimately, Coloradan communities need to have “express authority” under state law to be able to control their own fate when it comes to fracking and other industrial activities. In the meantime, Polis calls upon COGA to stop attempting to “sue, bully, or buy [their] way” into communities that have made a democratic decision to keep fracking out. 

As the home rule battles play out in Colorado and other states across the country, NRDC remains committed through the work of its Community Fracking Defense Project to helping communities stand up for their rights when it comes to fracking, and defending communities when industry refuses to back down.

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Comments

David F. SlottjeDec 14 2013 02:24 PM

“As in other shale-bearing states like Ohio, Pennsylvania, and New York, the Colorado courts have not yet determined the extent to which municipalities can exercise traditional zoning and home rule powers with respect to drilling.”

Respectfully, the above statement is not correct as to New York.

Four (and only four) New York cases (the Dryden, Middlefield, Binghamton, and Avon decisions, respectively issued by the Tompkins, Otsego, Broome, and Livingston County Supreme Courts) have explicitly considered this question, and all four held:

(i) New York municipalities wishing to do so DO have the legal authority to pass local land use laws of general applicability to prohibit gas drilling activities within their municipal borders,

(ii) such local laws are NOT ‘regulations’ within the meaning of ECL 23-0303(2), and

(iii) accordingly such local laws are NOT preempted by or in any manner ‘illegal’ under ECL 23-0303(2).


Two of those cases – Dryden, and Middlefield - were appealed, and on May 2, 2013 the Third Department unanimously upheld both decisions. (Those unanimous decisions have now been appealed to the highest court of NYS, the Court of Appeals, and are expected to be heard sometime in spring of 2014.) It is a FACT that no New York court at any level has ever held that a (local) municipality does not have the legal authority to say that drilling is not allowed within its municipal borders. Not one. *

* Many pro-drilling non-lawyers attempt to hang their hats on the Envirogas v. Town of Kiantone decision, but (as the judges have confirmed) such reliance is misplaced. Envirogas did NOT involve an attempt by a municipality to prohibit gas drilling within its borders. Rather, that case involved an attempt by a town that actually allowed drilling to impose upon the drilling company insurance requirements and other fees above and beyond those prescribed by the DEC. The Envirogas case simply confirmed what every lawyer working in this area knows: where drilling is allowed in a town, only the DEC (and not the town) may regulate the (otherwise allowed) drilling operations.

Daniel RaichelDec 15 2013 07:44 PM

Hi David,


Thanks for your comment. I agree with your assessment and have blogged about all four cases you mention (Dryden, Middlefield, Binghamton, and Avon) in previous posts (in fact, a lot of this information is available by clicking the "New York" hyperlink in the post above). I also agree that my original language in this post was somewhat confusing, so I have changed it to:


"As in other shale-bearing states like Ohio, Pennsylvania, and New York, the extent to which municipalities can exercise traditional zoning and home rule powers with respect to drilling has not yet been fully fleshed out by the state's highest court."


Although New York's high court, the Court of Appeals, has not yet weighed in on whether New York towns can use zoning to limit or exclude fracking within local borders, we are hopeful that the Court will follow the persuasive reasoning of the lower courts and its own precedent in the solid mineral mining context by upholding the Dryden and Middlefield ordinances.


Best,
Dan

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