When the city of Longmont's fracking ban was struck down by a Boulder judge, it could have been seen as a setback for those seeking to assert local control over surging oil and gas development along Colorado's populous Front Range.
A longer view of the matter, though, shows that local communities all across the state have exerted control over oil and gas within their boundaries for decades.
"That's where things have gotten a little distorted, I think, in the debate. It shouldn't be whether local governments have regulatory authority. It's what is the best way to regulate oil and gas harmoniously," said Barbara Green, an environmental and land use attorney who has counseled local governments on land use regulations.
In parts of the state where the energy industry has long been active – such as Weld County and many parts of the Western Slope – counties and home rule municipalities have successfully crafted regulations governing many aspects of oil and gas operations.
The key: "We really focus on land use," said Todd Weaver, an attorney for La Plata County. "And we try to draw a pretty black and white line between what is a technical down-hole issue and what are actually impacts to the surface. Things that affect the surface, that is land use and we believe we have authority over that."
As Weaver explained, Colorado law gives counties control over land use, and that control has been used to regulate where gas wells are sited and their impacts on natural resource and quality of life in many counties. Home rule municipalities, like Longmont and many other Colorado cities, have even more control options than counties.
Even while many counties and some municipalities in Colorado regulate oil and gas, their authority to do so has come under constant challenge, from both industry and the Colorado Oil and Gas Conservation Commission.
Local Control Can Push The Envelope, But Not Too Far
While much of the case law that has emerged favors local ability to control oil and gas at the land use level (things like setbacks, well siting requirements, or distance from natural resources), the courts have also been clear that there are some things local control can't cover.
For example, when the town of Greeley tried to ban drilling in its borders, the courts called that an "operational conflict," since it hurt or destroyed the state's interest in developing its oil and gas resources.
That 1992 case, Voss v. Lundvall Bros, Inc., was cited in the ruling invalidating the Longmont fracking ban.
In some cases, local controls have pushed the state to strengthen its regulations. When El Paso County was writing new regulations for land use control over oil and gas, the parameters it proposed for water well testing ultimately ended up in state rules, said Craig Dossey, the project manager for the El Paso County Development Services Department.
La Plata County had required setbacks stronger than the COGCC's until the agency adopted new setback rules, said attorney Todd Weaver. Then the county updated theirs to match the state's.
Gunnison County, which was sued over its regulations but has ultimately prevailed in keeping most of them in place, has required 150-foot setbacks from all natural water bodies, while the state only regulates distance from drinking water supplies. It also has some performance-based standards for industry, which allows operators to determine how they want to address a regulation, such as having "no significant degradation" of water quality.
"One company might say we'll do that by berming everything. Another may say we set everything back a certain amount of feet from a water body," said Gunnison County attorney David Baumgarten.
Even after losing its 1992 case, Greeley went back to the drawing board and wrote comprehensive regulations governing noise, visual appearance, setbacks, and wildlife mitigation for drilling within its borders.
Yet as the state has updated its rules to include items like setbacks from residential areas and water testing, lawyers say that can create additional confusion as to whether a local regulation on a land use – setbacks, say – can be stronger than the state's.
"There's tension there, and uncertainty," said Jeffery Robbins, a Durango-based land use attorney who has consulted with Boulder and La Plata counties on their oil and gas related land use regulations.
Boulder County's new regulations, on hold until 2015 due to a moratorium on fracking there, offer companies a two-tiered system. One is an expedited permit process where companies have to meet more stringent standards for protecting air and water quality, and the other option is a more standard process allowing operators create their own mitigation plans to meet certain objectives.
Local Needs May Differ County To County
As the local control debate has heated up around the bans and moratoriums passed in a number of Front Range cities, Governor Hickenlooper decried the possibility of a "patchwork" of regulations. But in some cases, a patchwork is necessary, since municipalities and counties have varying priorities and needs, say those involved with land use planning efforts.
In many Western Slope communities, maintaining water quality for recreation is important to residents. In the more populous Front Range, setbacks from schools and residences might be a bigger priority.
David Ludlam, the executive director of the Western Slope Colorado Oil and Gas Association, said his members have been able to comply with land use regulations that vary county by county.
Looking at Garfield, Mesa, and Rio Blanco counties, "all three of them approach local monitoring of oil and gas differently, but all three of them work fairly well," Ludlam said.
Far short of bans or moratoriums, these counties have used a wide range of planning tools to control how oil and gas develops.
Ludlam lists a few: "Conditional use permits, special use permits, traffic and road analysis."
In fact, a January article in the Stanford Environmental Law Journal suggests localities could use traffic management, an area very firmly within their authority, as an effective way to regulate the pace of oil and gas development.
"…ordinances restricting truck traffic can substantially mitigate the fracking boom's impacts on a community," the article states.
While the local land use control approach may not please those who do not want drilling at all, it's an approach that the Governor is also warming to, at least rhetorically.
In an April interview with Colorado Matters, Hickenlooper moderated his stance on the ability of local governments to have some control over oil and gas.
"I do think it’s legitimate that we should be looking at giving communities a stronger voice," Hickenlooper said.
Unfortunately, the special legislative session for lawmakers to hammer out a deal on that failed. Now the state awaits the outcome of several ballot initiatives, which would change how oil and gas is regulated by amending the state constitution. Come November, this next chapter in the local control saga will likely come to some conclusion – but then another will begin.
