Colorado AG Warns Boulder County Over ‘Continuous’ Fracking Moratorium

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By Tripp Baltz

Colorado Attorney General Cynthia Coffman (R) warned Boulder County the state will take legal action if the county fails to rescind its “continuous” moratorium on hydraulic fracturing and other oil and gas development.

Coffman gave the county until Feb. 10 to rescind what she called a “ban on oil and gas development” and to refrain from taking other steps to impede the “efficient and responsible development of oil and gas resources.”

In response, the county said it enacted its most recent fracking moratorium through May 1 to give it time to consider new proposed regulations governing oil and gas development, adding it would be “irresponsible to permit” drilling before the new rules are in place.

“Should the Attorney General’s Office decide to pursue litigation based on its arbitrary deadline of Feb. 10, 2017, the County will be prepared to defend it,” Boulder County Attorney Ben Pearlman said in a letter to Coffman.

As of Feb. 13, Coffman had not sued and did not have any comment beyond her late-January letter to the three Boulder County commissioners, Annie Skinner, spokeswoman for the attorney general, told Bloomberg BNA. If the state is ultimately “forced to go to court,” information about a legal filing will be made available to the public, Skinner said Feb. 13.

Locals May Not Ban

In her letter to the commissioners, Coffman noted the Colorado Supreme Court recently “made clear local governments may not prohibit oil and gas development at the local level.”

In May 2016, the Colorado Supreme Court ruled a fracking ban in Longmont and a five-year moratorium on fracking and the storage of fracking waste in Fort Collins operationally conflict with the state’s Oil and Gas Conservation Act and are therefore pre-empted. The court, in two separate rulings, invalidated both the ban and the moratorium, and industry said other bans across the state were similarly invalid City of Longmont v. Colo. Oil and Gas Ass’n, Colo., No. 15SC667, 5/2/16 City of Fort Collins v. Colo. Oil and Gas Ass’n, Colo., No. 15SC668, 5/2/16

Coffman said those rulings mean Boulder County’s “continuous five-year ban on oil and gas development” violates state law. “Neither permanent nor temporary bans are allowed,” she said.

The state high court, in the Fort Collins decision, said the city’s five-year moratorium was sufficiently lengthy to be “different in kind from a brief moratorium that is truly a ‘temporary time-out.’” Boulder County initially imposed a moratorium on oil and gas development from February 2012 through May 2017, exceeding the Fort Collins moratorium that was invalidated by the court decision, Coffman said.

Moratorium Extension

Given the state Supreme Court rulings, Boulder County rescinded the longer moratorium and replaced it with a moratorium lasting until Nov. 18, 2016. A hearing into the county’s draft regulations was held in November, three days before the expiration of the moratorium. Because additional work was needed on the regulations, the moratorium was extended until May 1, state Sen. Matt Jones (D), whose district includes parts of Boulder County, told Bloomberg BNA Feb. 13.

Coffman’s letter “threatening” the county was not requested by the state Oil and Gas Conservation Commission, Jones said, adding that he found the timing of her letter, dated Jan. 26, curious. “I would be enormously surprised if there weren’t a conversation between the oil and gas associations and the attorney general that resulted in this letter,” he said.

Dan Haley, president and CEO of the Colorado Oil and Gas Association, the plaintiff in the cases against Longmont and Fort Collins, said the attorney general’s letter was “clear” on the time frame for Boulder to lift its “illegal moratorium.” He said the association is disappointed Boulder has refused to comply with Coffman’s request.

Pearlman said the county hopes Coffman would recognize that litigation over whether it accepts applications for drilling permits in February rather than May “would be an unjustified intrusion into local government affairs, not to mention a waste of taxpayer resources.”

To contact the reporter on this story: Tripp Baltz in Denver at abaltz@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

Information about Boulder County's drilling moratorium and oil and gas rules is available at http://www.bouldercounty.org/dept/landuse/pages/oilgas.aspx

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