Our View: Lawsuit should give clarity

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Editorial Board, August through January 2012

  • Scott Stanford, general manager
  • Brent Boyer, editor
  • Tom Ross, reporter
  • Shannon Lukens, community representative
  • Scott Ford, community representative

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The inevitable happened last week, and not a moment too soon. The Colorado Oil and Gas Conservation Commission’s lawsuit against the city of Longmont means local governments, the energy industry and the state might finally get some clarity about who has what say in regulating oil and gas development in Colorado.

Many who have followed the growing rift between the Oil and Gas Commission, whose role is to regulate the oil and gas industry in Colorado, and the counties and municipalities struggling with how best to manage energy development in their communities knew the battle over regulatory authority ultimately would be decided in a courtroom. Indeed, Routt County has played a role of its own in the debate. Our county commissioners were emboldened recently in a battle of words with the Oil and Gas Commission about a county condition that Quicksilver Resources must employ water quality monitoring wells if it wants to drill an exploratory well near the unincorporated town of Milner.

A similar water quality monitoring rule imposed on the oil and gas industry by new city of Longmont regulations helped lead the state Attorney General’s Office, acting on behalf of the Oil and Gas Commission, to file suit in Boulder County Court last week. In a nutshell, the state is arguing that the city of Longmont — and presumably other cities and counties who have taken it upon themselves to enact regulations or conditions above and beyond those imposed by the Oil and Gas Commission — overstepped its bounds and has usurped the authority of the commission.

We’ve previously supported Routt County’s efforts to take responsibility for safeguarding the health and safety of its residents and resources, and we’ve also been critical of the lack of clarity in regulatory authority of the energy industry in Colorado. Further, we’re not convinced the Oil and Gas Commission has the staffing and resources to effectively regulate the energy industry. Gov. John Hickenlooper’s task force earlier this year did nothing to resolve the issue, so now the courts will. We don’t expect an answer anytime soon, and we imagine the loser in the Longmont case will appeal to a higher court. That means it could be years before Colorado sorts through the rules governing energy development.

Pennsylvania communities got their answer late last month when a lower court ruled in favor of seven municipalities that sued their state over a new law that required cities and towns to allow drilling even in areas where local zoning rules would prohibit it.

We tend to think the Pennsylvania court got it right — local governments should have regulatory authority over oil and gas issues in their own backyard. But whatever the outcome, it will be beneficial to everyone involved to have clarity,

Comments

Scott Wedel 1 year, 8 months ago

What lower state courts in Pennsylvania said about Pennsylvania state law truly has zero relevance in Colorado.

What this newspaper has failed to mention is that local regulations are allowed as long as they do not contradict or attempt to override state regulations. In particular, State Supreme Court has ruled that local areas cannot ban drilling and Longmont banned drilling in residential areas. (Which seems to be an odd concern since clean title for the residential homebuyers means not having severed mineral rights).

The Longmont lawsuit may not directly apply to Routt County because Longmont created a whole bunch of restrictions of which some override state rules. And note that Longmont passed their drilling rules on July 17th and has already been sued while Routt County and Quicksilver happened well before that.

I think the State would have a harder time successfully suing Routt County because Routt County limited itself to adding a few conditions that arguably enhance state regulation as compared to overriding the state.

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Steve Lewis 1 year, 8 months ago

I will guess Scott's point, the Longmont suit may not directly apply to Routt County, is precisely why Routt may file itself into this suit - to get the Court's determination on Routt's "boundaries".

I've listened to Barbara Green speak on this. She was counsel for the Gunnison case which went Gunnison's way. She underscores the zoning regulations are only in conflict with the State if they "materially impede the extraction of resources". Others will elaborate on what that means, but I believe the upshot is, if they can still make a profit, you have not materially impeded the extraction.

Shell has come in accepting Routt's fullest conditions. Seems obvious to the courts there is still the potential of a profit in Routt.

Longmont's ban will be an excellent case at the new edge, as Scott points out: The right to drill in residential areas. How is such a right no different than eminent domain, except it is held by industry rather than government. Interesting times in the split estate doctrine.

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Fred Duckels 1 year, 8 months ago

The environmental extremists have found an apple pie approach here as who can be against clean water? Their overall goal is most likely to establish some local control and eventually expand that into authority to wreak havoc with extraction, in the quest to eliminate fossil fuels. In gravel pits, operators individually sold the farm to get the next permit and now we are gradually eliminating our potential reserves and have played into the hands of those using the environment as a political tool. These folks are on the offense and to take them at face value is folly.

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Scott Wedel 1 year, 8 months ago

Fred, What Routt County adopted is actually less than what many in the industry have accepted as best practices. Hardly environmental extremism. Best practices also includes maintaining the equipment so that nat gas doesn't leak out, but Routt didn't mandate that harder to monitor or enforce provision.

The problem here is the oil and gas commission which adopted state standards substantially weaker than what reputable drillers accept as the proper way to conduct drilling operations.

And sure any regulations could be viewed as a step towards completely banning that activity, but the regulations could also be viewed as requiring that activity be done safely so that activity can keep on going.

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Steve Lewis 1 year, 8 months ago

Clean water for Milner is a ruse?

It would be so awesome to read a conservative point of view that addresses reality. Maybe even acknowledges neighbors who have a stake or experience in the issue spoken of. In Fred's post, the people in Milner are irrelevant and their drinking water consequences are even more irrelevant. WHAT really MATTERS is that liberals are scheming to ruin the world. Never mind that Fred's warning, "they want to end fossil fuels", is blatantly impossible. It apparently feels good to say it and read it.

"Trust me, they are up to no good."

Is that really what you guys are gonna bring?

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kathy foos 1 year, 8 months ago

How about a petition to the state in support of Longmont?They shouldn't have to have those fracking operation's in the neighborhood .

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Steve Lewis 1 year, 8 months ago

Sorry for my previous post. It is a mistake to equate Fred with anything other than Fred. As many will discern, in Routt, Shell Oil agrees with Fred's "environment extremists." Enough said.

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Fred Duckels 1 year, 8 months ago

lewi, Don't dumb down on me. Clean water is a no brainer but you are using this gift to establish as much local control as the traffic will permit. Local control is your toehold to advance the agenda. You seem to be unable to make inroads in other areas. Once again you are thinking way ahead, and to take you at face value is for the uninformed.

Clean water is a nice theme to camouflage an agenda, and a throw in, but your previous oil and gas activities have aroused my suspicions now that you are suddenly Mr Congeniality. Maybe the mothership has decided to try another tactic. You seem to posess David Axelrod qualities of evasion and he always has a goal in mind.

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Scott Wedel 1 year, 8 months ago

Steve, I think that "materially impede the extraction of resources" is not determined by how it affects profitability, but is measured as how much additional work the rules add.

For Routt County, requiring drilling a water monitoring well no more than a few hundred feet deep when the drillers plan on going thousands of feet for the nat gas would not seem to be a material impedance.

Longmont created rules regarding the transport of chemicals used in drilling, banning drilling in residential neighborhoods, banning drilling near creeks or rivers, requiring horizontal drilling over vertical drilling, requiring visual mitigation and so on. Even the newspaper describing the city council meeting in which it was passed said it was intended to ban fracking in Lomgmont.

If Routt County has any involvement in this case then I'd guess it'd be to ask the court to not confuse Longmont's excessive rules with Routt's good rules and so not write a decision that, in effect, also invalidates Routt's rules.

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