A fracking moratorium draws a long-awaited court challenge

In Colorado there is an ongoing court case challenging a county level ban on fracking which has been in place for several years. This is only one of many such moratoriums which have popped up at the state and local level around the country, but this one just got interesting. The heavily Democratic Boulder County (they went for Hillary Clinton over Donald Trump by a margin of 70 to 22 in November) has been challenged in court by the state attorney general on behalf of property owners who have been forbidden to allow energy exploration on their own lands. This week the judge hearing the case broaden the scope of the proceedings by allowing two other energy industry participants to join in. (Times-Call)

The Colorado Oil and Gas Association and the American Petroleum Institute are joining Colorado Attorney General Cynthia Coffman’s lawsuit seeking to end Boulder County’s moratorium on oil and gas development.

Boulder District Judge Norma Sierra on Friday granted the two industry trade organizations’ joint Thursday motion to intervene in the attorney general’s Feb. 14 lawsuit challenging the legality of the county’s moratorium and asking the court to order that it no longer be enforced.

Boulder County, which has argued that its current moratorium is legal and was needed to be able to complete updates to the county’s oil and gas regulations, did not object to the intervention. The county has until March 7 to file a formal response to Coffman’s lawsuit.

Adding in the resources available from these experienced outlets may not prove to be the deciding factor but it certainly pushes the conversation in a positive direction. What I’m really waiting to find out is whether or not a successful challenge to the Boulder County moratorium might establish precedent for similar actions around the nation which have produced mixed results at best.

Out here in New York, Governor Andrew Cuomo was remarkably successful in pushing through a fracking ban (still described as a “temporary moratorium”) which remains in place to this day. This has resulted in a sad situation for Empire State residents, particularly for those living along the upstate border with Pennsylvania which lies above the rich Marcellus shale deposits. Landowners in this area who had initially made arrangements for drilling leases have watched their neighbors across the border in the Keystone State grow wealthy from these fracking activities and seen increased employment and general prosperity just beyond their reach. Meanwhile, the Empire State continues to hemorrhage jobs and population.

The whole question of supremacy between federal, state and local law comes into play here but the court should still be able to answer the overriding question of precisely how free these various government entities are to restrict the activities of citizens on their own land. Before imposing such bans it would seem that the government should at least be able to show some demonstrable harm arising from the activity. In one study after another at both the state and federal level, no such danger from fracking has ever been able to be substantiated. With that in mind, should the government be able to effectively shut down a landowner’s ability to make a profit and achieve financial success?

If we can get a few of these challenges to go through successfully, perhaps the question can be taken to higher courts and arrive at a definitive solution. In the meantime, the residents of Boulder County will continue to wait.

Post updated to reflect the fact that the author briefly thought Boulder was in Utah for some reason.

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